One of the more widely promulgated arguments against the legal aid cuts and reform of civil justice funding is that any savings will be eclipsed by the additional costs to the courts and to other parties caused by an expected rise in Litigants in Person (“LIPs”).

Already, most litigators have faced the tribulations involved in facing a LIP opponent. Inappropriate orders are sought, papers are not served, court dates are not met, and applications to set aside orders and judgments are commonly made out of time – sometimes well after your represented clients have long thought their cases concluded. What strikes many is the multiplicity of approaches taken by courts in dealing with LIPs and the common issue of their defaults. Some appear to take an extremely lenient line, whilst others treat them with the same strictness of a represented party.

The Court of Appeal last week gave judgment in a case where represented parties – Tinker and Another – appealed against the decision of Mrs Justice Sharpe (handed down on 15 March 2012) allowing a Mr Elliot – a LIP and subject of a vexatious litigant order – to set aside a judgment of 15 March 2010.

The application to set aside was made on 8 December 2011 however Sharp J held that it was made “promptly” taking into account the fact that Mr Elliot was a LIP and had some mental health difficulties.

Tinkler & Anor -v- Elliot [2012] EWCA Civ 1289

Lord Justice Kay gave the leading judgment, with which Lord Justice Munby and Lord Justice Lewison agreed. It held that whilst there were circumstances where this could be taken into account as regards the issue of whether a party acted promptly, these “will only operate close to the margins” (paragraph 32).

Kay LJ continued to proffer some guidance as to the approach which should be taken with LIPs (paragraph 32 cont.):

“An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person.  It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence.  ...  The fact that, if properly advised, he would or might have made a different application then cannot avail him now.  That would be to take sensitivity to the difficulties faced by a litigant in person too far. ”

The Judgment is available at www.bailii.org/ew/cases/EWCA/Civ/2012/1289.html