Litigants in person – approach with caution?

The increase in recent years of the number of litigants in person (LiPs) is largely due to the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the Act), which came into force on 1 April 2013.

The Act served to reduce the scope for cases that could be covered by Legal Aid, which in turn ensured that those who cannot afford representation are taking on the mantle of representing themselves in litigation.  In addition to this, the small claims jurisdiction increased to £10,000, resulting in the inexorable rise of 'DIY justice'.

Whilst it is important not to make assumptions about the competency of a LiP, it has been found that they are prone to misunderstand procedural rules and legal principles.  Judges have estimated that hearings involving litigants in person last 50% longer (this has been disputed, and in any case, the length of the hearing is not necessarily an accurate reflection of how well a LiP has pleaded his or her case).

The Courts tend to lean in favour of a LiP, given their lack of familiarity with procedural rules and the natural difficulty they face in representing themselves. For example, in the recent case of Suh and another v Mace (UK) [2016] EWCA Civ 4, the Court held that a LiP can benefit from the without prejudice rule, without knowing what it means.

The Court can even actively assist the LiP with its case, for example by asking the represented party to prepare bundles and other documents, even though they would not ordinarily be responsible for them. The Admiralty and Commercial Court guide, for instance, states that "where a LiP is involved in a case the court will expect solicitors and counsel for other parties to do what they reasonably can to ensure that he has a fair opportunity to prepare and put his case." Sometimes, lawyers will have to take a lenient approach when dealing with a LiP, and indeed bear the cost of doing so.

However, in acting leniently, you run the risk of prejudicing your client's best interest.  An unscrupulous LiP might attempt to push the boundary as to what is acceptable conduct in a case, either by ignoring procedure or continuing with a claim that has no hope of success.  In such a situation, it is even more important to maintain a professional and fair approach, as the Courts will not take kindly to any attempt to gain an advantage by being overly tactical.  That said, you owe no duty to the LiP to walk them through the litigation, and "ignorance is no excuse" on their part.

There is clearly a balancing act that needs to be performed, so as to ensure the LiP understands the proceedings and that their human rights are safeguarded, while making sure your client does not feel that their own case is being prejudiced.

But what if the LiP is not playing ball?

Dealing with a LiP in a courteous and helpful way is undoubtedly beneficial for all concerned, but only up to a point.  It is notoriously difficult to get a LiP to analyse their claim in a pragmatic manner and acknowledge its vulnerabilities, as they tend to retain an emotional attachment to the dispute and want to see it resolved by the Courts. They often fail to acknowledge weaknesses in their argument, and are prone to making misguided applications to Court.

The costs incurred in defending a claim will have likely escalated due to the conduct of the LiP.  It is difficult to enforce costs orders against them, as often the very reason that they do not have legal representation in the first place is that they cannot afford it, so the represented party is at real risk of being out of pocket, regardless of whether they win or lose.

What can you do?

You should advise your client that, even if they are successful, there is no guarantee that the LiP will be able to pay any costs orders made against them.  Of course, this risk exists even when the losing party is represented, but is much higher when dealing with LiPs.

• Costs estimates

LiPs do not have to file a costs budget under CPR3.13.  However, the represented party can ask the Court to order the LiP to file and serve a costs estimate if there is reason to believe that a LiP is spending an inordinate amount of time on a case, or is receiving advice from a solicitor not on the record.

• Civil restraint order

These may be granted in situations where a party is issuing claims or making applications which are entirely without merit. This may be particularly applicable when you face a vexatious LiP who is happy to abuse process and faces little risk of recourse (for example where the LiP is also the subject of bankruptcy proceedings).

Don't pay too much LiP service

When it comes to a vexatious LiP, the represented client is vulnerable to being engaged with someone who will refuse to settle, or acknowledge the weaknesses in their claim, and is determined to see the matter through to trial.  Ultimately, a solicitor's duty is to protect the best interests of their client. So long as you have explained clearly and politely to the LiP the ramifications of their continuing with an unmeritorious claim, there may come a point where the softly softly approach is no longer appropriate.

The author is very grateful to Chris Keville for his assistance with this article.