Catherine Elford and Christopher Wakem consider the current trend for more professional negligence claims to be brought by litigants in person (LIPs).
Lord Justice Moses once spoke of such litigants and advised that “what is needed is not only understanding but therapy. The courts grapple with the former, but they inevitably fail to provide the latter”. Thus it will often fall to the other party and their legal representatives to bring order to an otherwise chaotic litigation experience.
Ask any seasoned litigator about their experiences with LIPs and there is a good chance that their response will include a rolling of the eyes, a protracted sigh, an amused smile or a torrent of war stories. Cases involving a LIP have the potential to be memorable for all the wrong reasons.
Of course, many LIPs are very intelligent and reasonable people, who have just chosen to conduct litigation themselves, rather than instruct lawyers to lead them through the process. This article is not concerned with the many reasonable LIPs, but rather the more vexatious breed of LIP.
LIPs are most common in the areas of law traditionally governed by legal aid; family, immigration and low-level civil disputes. Increasingly however, cases involving allegations of professional negligence are being brought by LIPs, a situation that is only likely to worsen in these recessionary times.
Watch your LIP
LIPs can pose a number of diffi culties.
First, they are generally not familiar with the court process, which can lead to non-compliance with procedural rules. This can sometimes be used to the professional party’s advantage, leading to successful applications for summary judgment, default judgment or strike-out. However, such applications are, in many cases, either not suitable on the facts or are likely to fail on account of the court’s reluctance to preclude the LIP from obtaining justice on account of a technicality or without a full hearing.
Secondly, LIPs are often unable to objectively assess the merits of their case. Inevitably, they are often emotionally attached to the claim, and desire to ‘have their day in court’, and ‘to see justice done’. This can hamper the prospects of an early settlement and increase costs.
Thirdly, if the claim is fought and successfully defended at trial, the LIP’s fi nancial situation may mean that it is diffi cult, if not impossible, to enforce any costs order (which may well be substantial) against them.
So what tactics can usefully be employed in the defence of a LIP claim?
Whilst it may be diffi cult to achieve an early resolution to a LIPinitiated claim in court, other weapons in a lawyer’s armoury, in particular a well-timed Part 36 offer, could bring about a commercial settlement or, at the very least, put costs protection in place.
The technical implications of a Part 36 offer are complex. Arguments may arise at a later stage that the LIP did not appreciate the cost consequences (so should be spared the resulting order for costs on an indemnity basis), if the offer does not clearly explain the potential consequences of non-acceptance.
Whilst a solicitor acting for the professional party must be careful not to assume a duty of care to the LIP, they do have a duty to act towards them with frankness and good faith (Thames Trains Limited v Adams1). Accordingly, setting out in clear terms the cost implications of a Part 36 offer would be both reasonable and appropriate behaviour.
In many cases commercial negotiation, either by exchange of without prejudice correspondence or attendance at a without prejudice meeting or mediation, will not bear fruit in terms of settlement. If it appears that the LIP wants his or her day in court, then alternative dispute resolution methods such as Early Neutral Evaluation, Expert/QC Determination and Med-Arb could be considered. These methods (which all involve an independent third party assessing the merits of the dispute) would enable the LIP to air his or her grievances, either in writing or orally, to the third party and may provide an acceptable alternative to their day in court.
Of course, they are not guaranteed to bring success. Many LIPs can be reluctant to settle even in the face of a negative response from a third party evaluator, and any process that imposes a decision on the LIP could give rise to a challenge under the Human Rights Act.
Know your LIP
Perhaps the single most important step to undertake on being faced by a LIP claim is to research the LIP in question. It may be that he or she has multiple litigations underway. In which case, this background research could be acted upon further down the line by obtaining an extended civil restraint order against the LIP. Clearly such orders are only made in exceptional circumstances but if the LIP does prove to be very diffi cult (for instance by making multiple applications to the court which are wholly without merit), it is certainly possible for such an order to be obtained, as is clear from the recent case of Supperstone v (1) Hurst (2) Hurst2.
This will not be an appropriate strategy in many cases. However, it is still worth researching the LIP’s background, particularly with a view to evaluating, at an early stage, what the prospects are of successfully enforcing a costs order against them. The costs arising from pyrrhic victories, where a LIP’s claim is successfully defended but the court either makes no costs order or the LIP is unable to meet any costs awarded against him or her, can be substantial.
There are very few circumstances in which a court will order a LIP to pay security for costs. Such orders are usually reserved for situations where the LIP resides out of the jurisdiction. Accordingly, unless they are of signifi cant means, there could be very limited possibility of any costs recovery. Often the most valuable approach is to establish what a successful defence is going to cost and then seek to dispose of the claim for a percentage of that ‘worst case costs scenario’, by balancing the litigation and costs risk. At the same time, it is also worth engaging in honest dialogue with the LIP about costs (whilst avoiding scaremongering tactics). It may be that advising them that they could face signifi cant costs and the prospect of bankruptcy is suffi cient to alter their approach to the claim, thus making settlement a more realistic possibility.
If a LIP is intent on litigation and unable to be drawn into a compromise (commercial or otherwise), then the likelihood is that the litigation could mean money down the drain. In those circumstances, one way of minimising costs is to take a more broad brush approach to the litigation. If appropriate, consideration could be given to seeking a split trial (in an effort to avoid the need for experts on causation and loss at the fi rst stage), disclosure could be provided by category or only one main witness statement could be given (rather than several statements covering similar ground). It may also be useful to set down some ground rules regarding communications with the LIP. It may be that emails would be more productive (and cost effective) than lengthy telephone calls - the content of which could be disputed further down the line.
In summary, there is no easy approach to litigating against a LIP. However, a willingness to use more unusual ADR methods, carefully drafted Part 36 offers, the establishment of a dialogue with the LIP regarding costs and the implications of Part 36 offers and some initial research into the LIP’s fi nancial circumstances can all pay dividends further down the line and help to steer a smoother path through these undoubtedly challenging claims.