highlights

  • Recent and future reforms of legal aid and costs may well see a rise in litigation without the assistance of a lawyer
  • A measured and pragmatic response to litigants in person may put a brake on the time and costs spent in such cases
  • If all else fails, the law provides a number of means by which to bring cases to an end or to limit a litigant’s ability to pursue unmeritorious arguments and actions

Proposed changes to legal aid, funding and costs are likely to lead to a significant rise in individuals conducting their own claims. We offer some practical guidance on dealing with claims brought by litigants in person

Much has been written about the “seismic” and “unfair” changes heralded by the reductions in legal aid and the Jackson Reforms. The changes may well streamline the system, but “time is money” and the proposed changes look unlikely to ease burdens on the courts or lawyers.

Layman v Lawyer

Websites dedicated to advising unrepresented litigants about their rights and liabilities abound. As access to affordable legal advice becomes increasingly hard to come by this is no bad thing. However, a little knowledge can be dangerous. The reforms are unlikely to reduce backlogs in the court system, or the costs of managing cases, if there is a significant rise in individuals conducting their own claims.

All lawyers will invariably have a story to tell about a case involving unrepresented opposition who refused to see sense and settle or back down. While there are many realistic litigants in person, there are those who stick in the minds of insurers and their representatives for all the wrong reasons. In such cases, costs can quickly escalate and the need to afford litigants every opportunity to argue their case can turn into prolonged, tortuous sagas.

Do’s and don’ts

So, when faced with a litigant in person what can lawyers do to encourage a relatively quick and sensible resolution?

DO:

  • Avoid jargon and overly legalistic language.
  • Provide clear, concise and dispassionate comment on the case.
  • Explain the procedural steps to be taken and the requirements of the CPR or pre-action protocols.
  • Take a co-operative and constructive approach especially with regards deadlines (within reason).

DON’T:

  • Offer legal advice.
  • Plead a litigant’s case for them.
  • Squabble over points of principle or practice which, in reality, have little bearing on the likely outcome.

Expect the unexpected

There will always be claims and litigants who are blind to the fact their claim or defence is unsustainable. In such cases, the side with legal

representation should look for ways to have a conclusion imposed upon the parties.

Where a claim makes no sense, is wholly unsupported by evidence or ignores a rule of practice or procedure (eg, time for service) move quickly to apply for strike out, summary or default judgment.

Thereafter turn your attention to enforcement and recovery of costs incurred. Investigate a litigant’s assets, employment and financial status. Should a charge be taken over a litigant’s home? Should an attachment of earnings order be sought? In more extreme cases should a bankruptcy petition be sought thereby transferring the right to litigate to a more objective and commercially minded trustee in bankruptcy.

In the most difficult cases, involving the most persistent of litigants, it may ultimately be prudent to consider applying for a civil restraint order (CRO).

CROs come in three forms:  

  • Limited.
  • Extended.
  • General.

Broadly speaking, each type of CRO is more restrictive than the last. A limited CRO restrains a party from making further applications in existing proceedings. An extended CRO restrains a litigant from making further applications or issuing new claims without the permission of a specified Judge. A general CRO bans a litigant from instituting any action or application without the prior permission of an identified Judge.

Such orders are not readily made and it is necessary to show that a litigant has repeatedly or persistently issued hopeless claims or applications, or which are an abuse of the court process.

The ultimate sanction is to get a litigant declared as “vexatious” by the Attorney General which, because it amounts to a denial of access to justice, should not be taken lightly or in anything other than the most extreme of cases.

The hare and the tortoise

We noted above that most lawyers can tell a tale about the most difficult of litigants. This is one of our own, and reinforces the view that a measured, logical and objective approach is the best way to manage an unrepresented litigant. If current reforms have the effect we expect, this approach will need to be employed in an increasing number of cases.

The claim was a fast track case for a refund of fees paid to our clients on the grounds our clients were negligent in the conduct of negotiations in an employment dispute.

The claimant provided lengthy statements and letters in support of her claim. Our replies were polite, providing gentle instruction on court procedure as necessary. Where the pleadings were defective we kept costs to a minimum by correcting the defects and responding as if they were properly pleaded. We responded to applications with acquiescence where possible and otherwise with clarifying and balanced letters to the court.

On filing our defence, we sent a Part 36 offer letter to the claimant encouraging her to discontinue and setting out, in a separate letter, exactly what the offer meant and what it would mean for her at trial, should she fail to do better.

Following a CMC we invited the claimant to a round table meeting, again explaining that if she did not attend, it would have costs consequences for her. She rejected the suggestion outright.

Our actions delivered dividends at trial - the judge preferred the evidence of our witness and rejected the claim entirely. In light of the offers made and the claimant’s rejection, the judge ordered that costs would be assessed summarily and, very unusually, on an indemnity basis. Further, he disapplied the restriction on the brief fee which ordinarily operates in fast track cases because of the complexity of the hearing. The Judge said that our costs were entirely reasonable given the claimant’s prolific documentation.

While not an inexpensive exercise, our clients’ slow, steady and reasonable approach “won the race”.