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'WATCH YOUR LIP' BY RICHARD PERKOFF

By Richard Perkoff

Once upon a time when Civil Legal Aid still existed, litigants in person (LiPs) were few and far between in commercial disputes. These days that is far from the case and it is a problem that lawyers and the courts all have to face up to. They burn up time, money and patience: sometimes because of wilful obstruction, but most often through simple lack of knowledge and understanding.

The Courts

The Courts have been, to say the least, schizophrenic in their approach. On the one hand the Chancery Guide sternly warns:

4.2  A litigant in person will be expected to comply with the Civil Procedure Rules (“CPR”), and the provisions of this Guide apply to them. Litigants in person should therefore make themselves familiar with those parts of this Guide which are relevant to their claim and also with the applicable provisions of the CPR.

A pious hope if ever there was one. Unrealistic, too. Why should an unqualified lay person be expected to understand the convolutions of the CPR and its voluminous Practice Directions?

In Nata Lee Ltd v Abid [2014] EWCA Civ 1652; Briggs LJ stated that the fact that a party is not professionally represented is not of itself a reason for the disapplication of rules and orders. There may be cases in which the fact that a party is a litigant in person has some consequence in the determination of applications for relief from sanctions, but this is likely to operate at the margins; see [53].

On the other hand, there are numerous examples of the courts indulging LiPs (particularly in respect of extensions of time) because they cannot be expected to know what to do and simply because to do otherwise will cause judges, court officers and, frequently the other parties, more trouble than it is worth. 

Such indulgence is not always a good idea. In one case the Court gave the claimant LiP three chances to deal with two lengthy Requests for Further Information, but the LiP did not really understand what was required and, unsurprisingly, did not know what form his answers should take. The result was a well-intentioned disaster comprising two sets of terse responses to the Requests and a lengthy Reply supported by 14 largely incomprehensible schedules.

CPR rule 3.1A  itself imposes special duties on judges dealing with LiPs at hearings:

(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 give evidence 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.

This, of course, requires the court to juggle its assistance to LiPs with its duty to be and be seen to be impartial as between the parties.  Case management decisions must also take account of the fact that a party is an LiP (CPR rule 3.1A (1). This is not necessarily all bad. In Chambers v Rooney and anr. [2017] EWHC 285 (QB) the court emphasised that striking out legally unsustainable parts of a claim would assist the LiP since it would save the preparation and fighting of those claims and avoid potential adverse costs consequences.

The courts are now plagued with correspondence from LiPs who do not understand that the judge and court officers are not there to advise them about their cases; that matters cannot be decided without the involvement of other parties to the proceedings and, more often than not, require formal application to the court.

The Lawyers

The Mercantile Court Guide contains this guidance for lawyers dealing with LiPs:

16.2    Where a litigant in person 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. The duty of an advocate to ensure that the court is informed of all relevant decisions and legislative provisions of which he is aware (whether favourable to his case or not) and to bring any procedural irregularity to the attention of the court during the hearing is of particular importance in a case where a litigant in person is involved.

Whilst this may be thought to express the general understanding of what lawyers ought to do in discharge of their duties to the court  (and not only in the case of LiPs), it gives no assistance in setting the boundaries of the assistance that the court will expect the lawyers for other parties to give to an LiP.

It is obvious that the LiP must not be misled, but how much of the lawyers’ time (and the client’s money) needs to be expended in educating the LiP? Harsh experience shows that the answer is “quite a lot”. However, there is a vested interest in explaining procedural requirements to the LiP so that pointless correspondence and misguided applications can be avoided if possible. Sometimes the advice will go unheeded. Sometimes an LiP, intent on averting the evil hour of judgment, will play dumb to prolong the process.  That is all part of the rough and tumble of litigation, but it is deeply frustrating to the client who is footing the bill, especially when the judge appears to be overly sympathetic to the LiP.  Keeping one’s own client advised of any help that is being given to the LiP and explaining why it is being done is good practice.

What should be avoided is trespassing beyond procedural assistance and into the realms of legal advice. Managing the potential conflict between assisting the LiP, as the courts and professional codes of conduct require, and the lawyer’s duty to his own client can be an acute problem. The duty to assist the court and the LiP is not unlimited. For example, in Etedal Kudados v Jacky Hayden and ors. [2007] EWCA Civ. 1316, it was held not to extend to supplementing deficiencies in the opponent’s evidence.  There is no obligation on a lawyer and, in particular, on an advocate to “find” defences or arguments that the LiP has not thought of. However, the duty not to mislead the court and to inform it of all relevant decisions and legislative provisions may reveal just such defences or arguments and a judge may well take upon himself the job of testing your case in a way which the LiP is incapable of doing. That is something that is not so easy to explain to your client.

Posted: 07.09.2017 at 11:00
Tags:  Comments  Commercial Law
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