The number of litigants in person (“LIPs”) is increasing, raising issues for the judiciary and practitioners. These issues tend to coalesce around the same central question: to what extent should a LIP be treated differently to a represented party?
This article summarises three recent developments: new professional guidance; a recent Court of Appeal decision; and the forthcoming CPR 3.1A.
Guidelines for lawyers
In June 2015, the Bar Council, CILEx, and the Law Society published guidelines to assist lawyers dealing with LIPs (“the Guidelines”).
Although little in the document is revelatory, there are some helpful pointers:
• Lawyers are reminded of their primary duty to the court and are warned not to take unfair advantage of LIPs;
• Lawyers should adopt a professional, co-operative, and courteous approach at all times. Jargon should be avoided – or at least, explained;
• A represented party may be required to assist the court and the opponent in ways not ordinarily required where both sides are represented, eg, in the preparation of bundles;
• Unless ordered to do so by the court, an opposing lawyer should not assist a LIP if doing so incurs a cost to his client which the client is unwilling to meet. Where the court does make such an order, and the lawyer considers that the order places him in avoidable conflict with his duty to his client, the court should be alerted to the same. The court may then reconsider and/or make an interim costs order;
• With regard to McKenzie Friends, the guidelines clarify three issues.
First, that it is generally not for the LIP to justify the exercise of the general right to assistance from a McKenzie Friend. It is normally for the court or the objecting party to explain why the LIP should not be assisted.
Secondly, that the onus is reversed in respect of a McKenzie Friend’s right of audience and/or his conduct of litigation. In these instances, the LIP must show that it is in the interests of justice for a lay person to address the court on his behalf.
Thirdly, that an opposing lawyer may raise concerns about the commercial relationship between the LIP and the proposed McKenzie Friend – especially where the latter’s fees exceed those charged by a lawyer for equivalent services. Here, it would seem that the guidelines have the “professional” McKenzie Friend in their crosshairs. The Guidelines – drafted by and for lawyers – could be construed as a shot across the bows of this flourishing but unregulated industry, with a judicial working group (led by Mrs Justice Asplin DBE) currently examining its role.
Stobart Group Ltd v Elliott
In Tinkler v Elliott [2012] EWCA Civ 1289, Kay LJ stated that:
“…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” [32].
Similar views were expressed by Moore-Bick LJ in R (on the application of Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 [43-44].
This robust approach was again evident in Stobart Group Ltd v Elliott [2015] EWCA Civ 449. The appellant LIP was required to file medical evidence by 11 July 2013. The appellant defaulted and then had his application for relief from sanctions refused.
On appeal, the LIP argued (inter alia) that the judge had failed to take into account all the circumstances, as required under Denton v TH White Ltd [2014] 1 WLR 3926. The appellant claimed to have suffered from a mental disability and, further, to have lacked the funds to instruct an expert at the relevant time.
The appeal was dismissed. It was held that the court’s direction relating to medical evidence had already made allowances for the appellant’s mental health. Further, the court found that there was insufficient evidence of the appellant being impecunious.
Of more general relevance, Tomlinson LJ (leading) reaffirmed the principle that the inability to pay for legal representation was no excuse for a failure to comply with court orders [39]. Nor was a LIP lacking experience of litigation [39]. Referring to recent authorities such as Hysaj, he noted that:
“The tide is flowing strongly… towards a less indulgent approach to non-compliance” [43].
CPR 3.1A
The new CPR 3.1A will come into force on 1 October 2015:
“(1) This rule applies in any proceedings where at least one party is unrepresented.
(2) Where the court is exercising any powers of case management it must have regard to the fact that at least one party is unrepresented.
(3) Both the parties and the court must, when drafting the case management in the multi-track and the fast track, take as their starting point any relevant standard directions which can be found online […] and adapt them as appropriate to the circumstances of the case.
(4) The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective.
(5) At any hearing where the court is taking evidence this may include:
(a) ascertaining from an unrepresented party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”
Sub-sections (2) and (4) could introduce small claims-style flexibility in fast- and multi-track proceedings involving LIPs. Some might assume that this flexibility will equate to leniency, thus stemming the “strong-flowing tide” Tomlinson LJ referred to. This writer is not so sure. Initial flexibility towards a LIP could fortify an opposing lawyer’s submissions as to subsequent non-compliance – as was the case in Stobart [40]. The new CPR 3.1A should merit a tentative welcome.
Rahul Varma is a barrister at Lamb Chambers
