There can be little doubt that modern litigation involves the increased presence of people representing themselves in court. Particularly amongst some kindlier judges (in all courts) there could be said frequently to be a culture of benevolence towards such litigants-in-person when it comes to non-compliance with the Civil Procedure Rules and other procedural rules.

This can lead to significant frustration amongst represented parties, particularly in circumstances where a Strike Out or other such punitive sanction is sought, but denied on the grounds that the defaulting party should be afforded another chance (perhaps applying the third limb of the Denton test?). Yet further frustration is likely to be felt should the prospect of recovering any costs from the said defaulting party is considered, notwithstanding those thrown away by any such default, assuming as one may that the reason most litigants-in-person are just so is for reasons of pecuniary necessity.

Lord Justice Briggs in giving the sole judgment of the Court of Appeal (Underhill and Moore-Bick LJJ concurring) in Nata Lee Ltd v Abid & Anor [2014] EWCA Civ 1652, may provide such represented and non-defaulting parties with some hope. This was an appeal concerning the trial of a boundary dispute, at which the Appellant was represented by a company director and the Respondent by leading and junior counsel. The Appellant’s application for to change its expert was unsuccessful on the grounds that it was “too late” and provided insufficient reasons for its request. The Court of Appeal found that this decision was “seriously flawed”, but not before emphasising that  the application of procedural rules of the court were to be applied levelly to represented and unrepresented litigants.

Briggs LJ held:

53.       I make it clear at the outset that, in my view, the fact that a party (whether an individual or a corporate body) is not professionally represented is not of itself a reason for the disapplication of rules, orders and directions, or for the disapplication of that part of the overriding objective which now places great value on the requirement that they be obeyed by litigants. In short, the CPR do not, at least at present, make specific or separate provision for litigants in person. 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.