What is a litigant in person and what are the latest developments?

A litigant in person is an individual, company or organisation who makes a claim without legal representation from a solicitor or barrister.

More recently there have been important developments which should be taken into account before going down this route. One of the most fundamental changes is from the recent cases of Barton v Wright Hassall and Reynard v Fox. Both of these cases have shown that litigants in person (“LiP”) cannot be given “special dispensation” when interpreting the court rules and cannot expect “the law to bend to suit their circumstances”. There has, in the past, in some cases been some leniency for LiP’s as they were not legally trained and would not be expected to know the law.

Why might this be changing?

In the Supreme Court case of Barton v Wright Hassall [2018], the Claimant (who was a LiP) served a claim form on the Defendant’s solicitors by email on the last day for service. This was done without first checking that they were prepared to accept the forms by e-mail. It is commonly known amongst lawyers and people working in the law that unless someone agrees to accept information and documentation by email, it will not be considered to be “good service”. The Defendant’s solicitors argued that they did not accept service by email and as such the claim form had expired unserved, resulting in the claim becoming statute barred.

The Supreme Court held that:

‘Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step he is about to take.’

In other words, if someone is acting as a litigant in person they should get to know the procedures of what they are doing.

Lord Sumption in Barton acknowledged that

“litigating in person is not always a matter of choice with the unavailability of legal aid and conditional fee agreements being restricted, some litigants have little choice but to represent themselves”, and whilst “their lack of representation will often justify making allowances in making case management decision and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court […] Any advantage enjoyed by litigants in person imposes a corresponding disadvantage on the other side, which may be significant”

Again this means that even though there are reasons in which people are not able to have legal representation the Court has to remain fair and not be too lenient on LIP’s to give an unfair advantage.

Another important decision was the subsequent case of Reynard v Fox [2018]. This was a case where the Claimant (a LiP) had been made bankrupt and attempted to bring a claim for damages (for breach of contract and in negligence) over the handling of his bankruptcy proceeding. He had however failed to pursue the claim under the correct section of the Insolvency Act 1986 or by following the correct procedure. The Defendant’s solicitors, therefore, applied for the claim to be struck out. The Claimant argued that it would be unjust if his claim was struck out because he was a litigant in person and ‘didn’t have a detailed knowledge of insolvency regulations’. HHJ Matthews described the Claimant as an “intelligent and articulate litigant” who had learned a great deal about insolvency law and civil procedure and he could see “no injustice arising merely from the fact that the claimant was a litigant in person”.

What does this mean to Litigants in Person?

Since the changes to legal aid which limited to the scope of eligibility, the rise in small claims and the restructuring of conditional fee agreements, it is no surprise that the number of litigants representing themselves within Court proceedings has risen sharply.

Whilst, LiPs may find that they have no choice but to represent themselves for the above reasons, they should tread carefully going forward as any advantage given to a LiP by the Court must be seen in context and weighed up against any disadvantage to their opponent.

In practice, what we see occur is that LiPs trying to litigate themselves will sometimes (intentionally or otherwise) make matters worse which could have been avoided had prompt legal advice been sought at the outset.