FREE CHAPTER from ‘A Practical Guide to Working With Litigants in Person and McKenzie Friends in Civil Proceedings’ by Stuart Barlow

CHAPTER FIVE – IMPLICATIONS OF WORKING WITH
A LITIGANT IN PERSON

1. Litigants in Person are not all the same

A lawyer should guard against thinking there is a stereotypical litigant. One must not think that all Litigants in Person will be difficult and awkward. That is not the case: many will be very cooperative and appreciate any help the lawyer can give them.


2. Costs can increase

In cases involving a Litigant in Person, there is frequently more work to be done by the lawyer acting for a legally represented party and the proceedings can be more costly for their client. More work is undertaken by the lawyer because a Litigant in Person has no experience in handling the work required. Sometimes a court order requires that the work is done by the represented party. For example, in the preparation of bundles for a court hearing. This may seem unfair on the represented party but there is often no way of avoiding it. Clients need to be made aware of this. The court may order the represented party to:

  • Prepare all necessary bundles of documents and provide them to the court;

  • Provide copies of bundles to a Litigant in Person at the same time as providing them to the court;

  • Provide written arguments and documents to the court and to the Litigant in Person in good time before any hearing, unless a delay is unavoidable;

  • Where necessary, promptly draw up and seal the order made by the court.

If these will give rise to significant expense to the represented party, the court should be asked either to direct the Litigant in Person to professional services [eg bundles] or to direct that the Litigant in Person bear the costs of the lawyer preparing the bundle.


3. Flexibility is required towards a Litigant in Person

Experience has shown that courts will often be more flexible towards a Litigant in Person. Judges will not be keen to admit this as they like to be seen to stick to the rules and deal with each party in the same way. Much of the case law supports this approach. However, experience shows that a judge is sometimes prepared to be more lenient towards a Litigant in Person, simply to have an effective hearing.

The court is obliged to afford procedural fairness to all parties, whether represented or appearing in person, and the duty of the court extends to providing appropriate assistance as required. Common Law and Article 6 compliance require:

  • The right to be heard and the right to challenge evidence (a fair trial);

  • Access to the same information and to production of the same documents;

  • A person’s right to know the case against them;

  • The right to a decision affecting their rights;

  • To be present and participate in hearings about the case;

  • A reasoned decision.

The court may exercise these powers on application by one of the parties or of its own initiative. Achieving the overriding objective might require a judge to offer a degree of latitude towards a Litigant in Person whose preparation and presentation of case does not conform to the court rules, provided that this does not compromise due process. The effective management of a case involving a Litigant in Person might require more directions hearings than would otherwise be necessary.


4. The outcome of proceedings is less predictable

It is hard to predict certain success of any case but experience has shown that the outcome of a case involving a Litigant in Person is far less certain. Judges are under a duty to actively manage cases. This includes the freedom to extend or shorten the time for compliance with any rule, practice direction or court order; adjourn or bring forward a hearing; to receive evidence by phone or other means; decide the order in which issues are to be heard; exclude an issue from consideration; take any other step or make any other order for the purpose of managing the case and bringing about a fair hearing on both sides.


5. More contested hearings and appeals

In a case with a Litigant in Person, statistics show there are more contested hearings and more appeals. A compromise is so much harder without a lawyer on both sides. Sometimes a Litigant in Person may not appreciate that compromise is a vital part of court proceedings and is unclear how to achieve this. Some Litigants in Person would rather have their case heard and risk the outcome than settle a case on terms which are either uncertain or unknown. Appeals can be filed by a Litigant in Person on the basis there is nothing to lose.

In March 2018, Sir Terence Etherton identified that permission to appeal applications made by Litigants in Person in the civil division of the Court of Appeal stood at 42% of all applications for the 12 months ending 31 January 2018. Given that nearly half of all Court of Appeal matters now involve a Litigant in Person, it is important for both represented parties and a potential Litigant in Person to be aware of the latest developments concerning their treatment by the courts.

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