In what appears to be a decision which may add to the recently burgeoning corpus of jurisprudence surrounding the treatment of litigants in person,* the High Court has afforded lenience to an unrepresented party who sought a second adjournment of a trial.
Tan & Anor v Law & Anor(2013) High Court, QBD (unreported, 24/6/13) is a debt claim. The Defendants’ previous contention that they could not speak English well enough to conduct their defence without an interpreter was disputed by the Claimants, though had been a reason why the trial of the case had been previously adjourned on the day of that trial.
Again, on the day of the relisted trial (24 June 2013), the Defendants’ applied again to adjourn. This time it was submitted it was to allow then to seek further funding (their Legal Aid Agency funding did not extend to representation at trial). It was argued that the matters in issue were complex and that the Defendants’ required professional representation. The issue was interpreted by the Court to involve questions of the Defendants’ Article 6 ECHR rights to a fair trial.
The Judge (HHJ Burrell QC sitting as a Judge of the High Court) disagreed with the Claimants’ submission that the Defendants had done little to advance their case for an extensive period of time, failed to comply with previous orders and directions of the court, and failed to seek legal funding until the day of the actual relisted trial.
The Court held that whilst Article 6 did not necessarily envisage a right to representation, this was a proper consideration for the Court when addressing the issue of what constitutes a ‘fair hearing’. The “checklist” of CPR 3.9 was not always an appropriate means of considering an application from relief from sanctions, and a court ought to take a fact-specific approach. It was held that there really had to be an equality of arms and to ensure this, it may be necessary for one party to have access to legal aid. This was especially so, in a case such as the instant one, which concerned complex facts, law and argument, and where one or other party could not speak English. The trial was thus vacated to allow the Defendants time to attempt to secure funding for representation.
This is clearly a politically resonant decision at a time of great tension as to the future of publically funded legal representation. It also could be seen to offer further guidance to courts as to dealing with what is widely feted to be a likely deluge of unrepresented litigants in the civil courts in the future.
* for example, such recent decisions as are learnedly discussed in the following articles: