Due in court without representation – think carefully

Restrictions imposed by successive Governments in legal aid, and conditional fee agreements, has seen a rise in people attempting to bring their case before the court without the assistance of legal professionals.

They are known as Litigants in Person.

Terry Regan, director at Wake Smith Solicitors, looks at how not using professionals brings with it a number of issues and encourages individuals to think carefully before embarking on a court case without representation.

“Litigants in Person, generally, are not familiar with either the law underpinning their case, or the court rules which the civil court operates.

“The Civil Procedure Rules (CPR) which govern the way cases should procedurally be conducted are complicated and can appear intimidating. Should Litigants in Person therefore be treated more leniently than lawyers?

“This question came before the highest court, the Supreme Court, recently in a case concerning professional negligence.

“The relevant detail is that the Claimant acted as a Litigant in Person. He needed to serve a Claim Form on the Defendant which formally commenced court proceedings.

“He had a period of four months to do so. He served the Claim Form on the final day by email. He did not get agreement from the Defendant that they would accept email service (which is necessary). The Defendant took the view that as there was no valid service the Claimant was now out of time.

“The Claimant applied to the District Judge to validate the service of the Claim Form. He failed. He had served out of time. He appealed to the Circuit Judge, then the Court of Appeal and again failed.

“The matter then came before the Supreme Court whose judgement was given in February 2018. The Court rejected the Appeal by the Claimant.

“In particular the Supreme Court rejected the argument that litigants in person should be given special treatment or leeway.

“They should be expected to make themselves aware of and follow the CPR. To give one particular class of litigant additional indulgences, in their view, would be unreasonable. The framework of court proceedings needs to provide a fair balance to both sides.

“The Supreme Court made it very clear that, with the exception of special cases, litigants in person are under the same duty as lawyers to comply with the CPR.

“One would, therefore, need to think very carefully before embarking on a court case without representation.

“There are many potential hazards in the CPR which could prove fatal to your case and potentially expose a litigant in person to legal costs.”

Information from a report entitled Litigants in Person: a Literature Review by Kim Williams from The Ministry of Justice highlighted some interesting facts and issues facing this group. The weight of evidence in their review, amongst other findings, concluded that lack of representation negatively affected case outcomes, although few of the studies reviewed set out details of case complexity. This was across a wide range of case types.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217374/litigants-in-person-literature-review.pdf

“Finally, on the question of serving a claim form by email, you may be puzzled why, in the current age, this is still an issue.

“It remains the case that agreement with the other party is necessary. The Committee which develops the court rules should look further at this.

“Other jurisdictions have tackled this issue. For example, in Canada, the Ontario Superior Court, recently granted permission for legal representatives of an insurance company to serve court proceedings via Instagram and LinkedIn, in the absence of a current address for the Defendant. This perhaps may be a step too far for any development of our current system.”

For further information please contact Terry Regan on 0114 266 6660 or at terry.regan@wake-smith.com

 

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