This year’s reduction in legal aid and the removal of recoverability of success fees and premiums from the losing party can lead to only one thing: a huge increase in the ranks of litigants in person (LiP's). We review recent proposals to deal with the problems that are likely to follow and offer guidance to those on the receiving end of civil claims brought by LiP's.
Report of the Judicial Working Group on Litigants in Person
This report was published in July, following the changes brought about by the Legal Aid, Sentencing and Punishing of Offenders Act 2012 (LASPO) in April this year. It refers to the more detailed report of the Civil Justice Council, Access to Justice for Litigants in Person, published in November 2011. The 2011 report recommended that LiP's should be called self-represented litigants (SRLs) but this was rejected in practice guidance issued by the Master of the Rolls earlier this year.
The 2013 report focuses on what the judiciary can do to manage the problems caused by LiP's and considers whether court rules need to be amended to give judges more flexibility when dealing with LiP's.
Factors which will have a significant effect on court administration include the following:
- Public funding cuts will increase the numbers of LiP's beginning claims without the benefit of any legal advice.
- Ongoing pressure on court resources will affect the capacity of staff to provide litigants in person with administrative services.
- LiP's can struggle to understand basic procedural requirements and the importance of time limits, which in turn causes delay.
- Lack of understanding of the rules can lead to an increased number of applications and correspondence with the court with consequent burden for judges doing “box-work” before a hearing and listing issues.
- They are more likely to lodge legally misconceived applications and appeals.
- Hearings and trials are likely to take longer, causing delays to other litigants – see comments in Wright v Michael Wright Supplies Ltd.
- LiP's may be wary of forming a working relationship with an opposing party’s representative and in consequence can be less keen to mediate or settle.
- They are more likely to complain about judges because they disagree with the findings and conclusions reached (particularly where the judge quotes from the other party’s submissions).
- LiP's may try to set aside a consent order where they consider the judge to have interfered or encouraged settlement – see recent guidance from the Court of Appeal in Watson v Sadiq.
The 2013 report includes the following recommendations:
- Amending the CPR – this could include adding a specific power to CPR 3.1 allowing the court to employ a more inquisitorial form of process.
- Preparing audio-visual material for LiP's and reviewing web-based information.
- Preparing guidance for judges conducting case management conferences (CMCs) and hearings (Annex A to the report includes draft guidance for civil proceedings).
- A review of judicial training.
- A review of the rules applying to McKenzie Friends and other lay assistants.
- Judges should be strongly encouraged to deal proactively and robustly with vexatious litigants (see Nowak v The Nursing and Midwifery Council for a recent example).
Solicitors acting for defendants on the receiving end of claims brought by LiP's will have concerns about how the changes to the CPR introduced in April will work in practice, in particular those to the overriding objective and CPR 3.9. The focus on the CMC with strict judicial control of issues, disclosure, witness and expert evidence (with an increased use of single joint experts) should help but there are many unanswered questions, some of which are discussed below.
- Will the courts apply a zero tolerance approach to LiPs? It appears they will, whether under CPR 3.9 or elsewhere, but probably not on the first default when the court will not yet have explained to the LiP the consequences of a failure to comply with procedural rules. In Tinkler v Elliott (2012) the Court of Appeal said “An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person … the fact that a litigant in person ‘did not really understand’ or ‘did not appreciate’ the procedural courses open to him for months does not entitle him to extra indulgence”. However, the draft guidance in Annex A to the 2013 report warns that it will take time for the adoption of a stricter approach to percolate through to the volunteer advice sector.
- How will costs budgeting work? Unlike a represented party, an LiP is not required to provide a costs budget. The defendant has a difficult task since the judge is likely to be concerned about inequality of arms and will wish to keep costs to a minimum, whereas the reality is that it costs more to defend a claim brought by an LiP. There are no easy answers here.
- Are LiP's required to provide disclosure reports? All parties in multi-track non-personal injury cases must comply with the requirement in CPR 31.5(3) to file and serve a disclosure report not less than 14 days before the CMC is held. The draft guidance in Annex A to the 2013 report suggests that where an LiP fails to do this, judges should consider giving an explanation of the requirements and request, in effect, an oral disclosure report to the court.
Role of represented parties
The 2013 report, which considers problems from the viewpoint of judges, does not look specifically at the role of represented parties and in particular the duties of the lawyers acting for the other side. In contrast, the 2011 report looked at the role of lawyers and Appendix 2 to that report included draft guidance. The Law Society also provided guidance in 2012.
Advocates have a duty to ensure that the court is informed of all relevant decisions and legislative provisions of which they are aware (whether favourable to the case they are advancing or not); and to bring any procedural irregularity to the attention of the court before or during the hearing.
The Law Society advises that any steps taken to assist an opposing LiP should be done in a manner consistent with the lawyer’s duty to their client and to the court. Any assistance should be non-advisory and limited to purely procedural issues. Depending on the circumstances, it might be appropriate to consider the following:
- Drawing an LiP’s attention to a particular procedural rule by sending them a web-link.
- Provide a link or copy of an authority where an opposing solicitor would normally only require a citation.
It is important to explain the position to your own client so as not to give rise to the impression that you are advising the opposing party. Solicitors also need to consider whether they will carry the cost of any additional work or time involved in assisting the LiP, or whether they will seek to recover any additional costs from their client.
And finally, lawyers should make sure that they are fully acquainted with the guidance available to LiPs such as the interim applications guide. Providing an LiP with links to guidance and relevant rules can only help with the efficient management of the proceedings.
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