Sunday, 25 February 2018

Litigants In Person: Must Read

If, despite the fact you could not tell the difference between a left leg and  a right arm, you performed surgery on yourself, nobody would expect you to do as good a job as a surgeon. But if you acted for yourself in civil legal proceedings, the court would generally expect you to follow the rules of procedure as correctly as a trained lawyer. Or would it?

I am afraid so. That's clear from judgments last week by the Supreme Court.* Three of the Justices agreed that a litigant in person was not entitled to greater indulgence in complying with the procedural rules and practice directions - they are to be found in and with the Civil Procedure Rules 1998 - than their opponent who was represented by lawyers. Any advantage enjoyed by a litigant in person, they said, imposed a corresponding disadvantage on the other side which had  a lawyer. It was reasonable to expect a litigant in person to familiarise themselves with the rules which applied to any step they were about to take unless the rules and practice directions were 'particularly inaccessible or obscure.' These Justices were in no doubt that what the litigant in person in the case had needed to check up on if he had chosen to do so was readily accessible on the internet and elsewhere. 

You may find as a litigant in person that your claim or defence has been thrown out by the court or you face the treat of that happening because you have fallen foul of a procedural requirement. Well, you can always have a go at running the argument that  you are a litigant in person and that the requirement was buried away in a document which was 'particularly inaccessible or obscure' though don't hold your breath. And in a borderline case where you are asking the court to forgive your transgression - it's known as an application for relief from the sanction the court has imposed because of your  mistake- the fact you are on your own may just tip the balance so never be shy about emphasising it.

The Supreme Court rulings concerned the strictest type of procedural requirement over service of a claim form where the court's approach may be different to that on a relief from sanction application.  The litigant in person in the case had  failed to serve the claim form on the other side in an approved manner. He had faxed it to them when he was not entitled to do so and by the time he discovered the error, it was too late to remedy it. The claim form was by then invalid and it was not possible for a fresh claim to be made because time had expired for starting claims of that kind. My book Breaking Law covers the time limits for starting proceedings.

Breaking Law (here he goes again) is oozing with material which is aimed at preventing those litigating without a lawyer to avoid procedural traps - and much else. 

* The case was Barton v Wright Hassall LLP [2018] UKSC 12