It is probably fair to say that most lawyers – and quite a few judges – are uncomfortable dealing with Litigants in Person (‘LiPs’). That is not solely because they are so often a loose cannon in the legal process: they often have a limited understanding of procedural rules and legal principle; and, in family cases especially, they have a strong emotional attachment to their case, which can result in a subjective assessment of their claim and a reluctance to settle. All too often they break the rules and – unlike lawyers – get away with it. To make matters worse, it is the lawyer who has to produce the bundles and the authorities, and guide the LiP.
As we all know, the number of LiPs has mushroomed since the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’) came into force on 1st April 2013 – because, as a result of that legislation many fewer people are eligible for Legal Aid and so have no real choice but to represent themselves. So the problems they cause, not just for themselves but for lawyers and the legal system as well, seem likely to get worse.
There’s very little literature out there to guide lawyers in their dealings with LiPs. So here are some guidelines which I hope will be useful both for lawyers and LiPs.
Do the rules apply to LiPs?
The first apparent problem is the leniency which some judges show to LiPs when they break procedural rules or just simply don’t know the law. Put bluntly, it often appears as though some judges think that the rules apply to lawyers but not to LiPs. It remains to be seen whether that becomes worse or better in the wake of the recent Mitchell v. News Group Newspapers  .
Even before Mitchell, however, that leniency had its limits, as Tinkler v. Elliott demonstrated. That arose out of a long-running series of cases which followed Mr Elliott’s dismissal as a helicopter pilot by a company of which Mr Tinkler was the chairman. Mr Elliott failed to appear at the trial and judgment was entered against him. Some 20 months later he applied as an LiP to set that aside on the basis that he had been unable to attend the trial through illness. The first instance judge allowed his application, but the Court of Appeal reversed that on the grounds that he had not applied promptly. Maurice Kay LJ said:
“I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. 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. “
Experts, bundles etc
The second problem is who should organise and pay for things like the preparation of bundles and obtaining expert evidence – matters which are often essential to a case or at least to the smooth and efficient running of a trial. Patten LJ commented on this in the Court of Appeal in the children’s case of Re A (Prohibited Steps Order):
“The question of how the necessary expert opinion is to be paid for is therefore likely to be a real issue in a significant number of cases. We see this as an additional difficulty facing judges and the adult parties (who may well themselves be litigants in person).”
Practice Direction 27A of the Family Procedure Rules 2010 provides (at paragraph 3.1) that if the applicant is an LiP the first Respondent who is legally represented has to prepare the bundle, but if all of the parties are LiPs none of them is obliged to provide a bundle unless the court directs otherwise.
The sort of problem that creates was commented on by Black LJ in the recent case of Re R (A Child):
“ This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.”
The problems caused by LiPs in courts at first instance are just as difficult.
Following a hearing courts often ask the lawyer to draw up the order and to agree it with the LiP. That is often difficult and, with an argumentative LiP, can be impossible. My own practice is to tell the judge that I will draw up the order and then show it to the LiP but that I cannot promise to agree it with them, thereby leaving it up to the judge to decide whether or not my draft accurately reflects the orders he/she has made – a practice with which judges invariably agree. The forthcoming publication of the standard precedents for family orders (the ‘Mostyn precedents’ as they have become known) will at least make it easier for judges to prepare their own orders from the precedents.
Evidence and Submissions
Another difficulty is that LiPs do not understand the distinction between evidence and submissions. As a result, many do not give all their evidence when they are in the witness box, but instead make allegations in their submissions. One answer to this was given by Rider LJ in the recent case of Re H (A Child) where he said:
“For my part, I would strongly suggest that in future, in an environment in which litigants in person are now the rule rather than the exception, a judge should have each party sworn or affirmed before they make submissions so that there is formal evidence on the record from that person and also that it is explained to each litigant in person by the judge that they can ask questions if necessary through the judge who will then decide whether the question is appropriate, for example, on the grounds of relevance.”
That does not, though, provide a solution to the problem caused by LiPs making new allegations in their closing submissions – by which time, of course, opportunities for re-opening cross-examination are often unrealistic.
The lawyer’s duties to an LiP
That is not the only duty that falls on the lawyer facing an LiP. The Admiralty and Commercial Court Guide states that “where a litigant in person is involved in a case the court will expect solicitors and counsel for other parties to do what they reasonably can to ensure that he has a fair opportunity to prepare and put his case”. Though there is nothing to that effect in the FPR or its Practice Directions, one suspects that most family judges would have the same expectations.
In any event, solicitors have professional duties to help LiPs. The SRA Code 2011 contains these ‘Indicative Behaviours’: 11.7 states that a solicitor should not take ‘unfair advantage’ of an opposing party’s lack of legal knowledge where they have not instructed a solicitor; and 11.9 states that solicitors should not use their professional status or qualification to take ‘unfair advantage’ of another individual in order to advance their client’s interests. Taking ‘unfair advantage’ refers to behaviour that any reasonable solicitor would regard as wrong and improper. The Code suggests that might include:
- bullying and unjustifiable threats;
- misleading or deceitful behaviour;
- claiming what cannot be properly claimed;
- demanding what cannot properly be demanded.
The Law Society’s Guidance suggests occasions when it may be appropriate to assist an LiP.
The Bar’s Code of Conduct does not specifically contain anything similar (though Rule 1 of Sections D1 and D2 contains rules about barristers’ behaviour towards the court and others which would also apply in relation to LiPs).
Of course, many LiPs are assisted by McKenzie Friends, who are either unpaid relatives or friends, or professional, paid ones. This is a subject which deserves an essay of its own. For the present, though, it is enough, I hope, to be remind you of the current guidance, President’s Guidance: McKenzie Friends.
Subject, of course, to the ‘no order’ principle in FPR rule 28.3, LiPs can be awarded costs in appropriate cases. They can either be awarded a maximum of :
- Two-third of the amount which would have been allowed if litigation had been conducted by a legal representative, if, but only if, they can prove financial loss; or
- If they do not prove that they have suffered financial loss, £18.00 per hour.
‘Financial loss’ in this context means loss of earnings, whether the litigant in person is employed or self-employed. The burden is on the LiP to prove that loss. In addition, he is required to produce to the court and serve on the other party any written evidence upon which he relies to support the claim for financial loss at least 24 hours before the hearing at which the question may be decided. However, it appears that duty will not be imposed too severely. In Joseph v Boyd and Hutchinson the court considered that it should adopt a broad brush approach in circumstances where the work was done during hours when the LiP was available for work. It was not necessary to enquire to any great extent as to whether they would have been engaged on other business, but the LiP must show that he would have been gainfully employed and also how much would have been earned.
There are 2 competing authorities as to how much time should be allowed to an LiP to prepare his case. In Mealing McLeod v Common Professional Examining Board it was held that CPR rule 46.5(4) suggested that more time should be allowed to a litigant in person than to a solicitor doing the same task. However, in Greville v Sprake the Court of Appeal, without referring to Mealing-McLeod, held that a litigant in person is limited to the time which would reasonably have been spent by a solicitor on the preparation of his or her case based on CPR rule 46.6(3)(a).
An LiP can, in addition, claim disbursements in full if they have been reasonably incurred. Those can include payments reasonably made by him for legal services relating to the conduct of the proceedings; and the costs of obtaining expert assistance in connection with assessing the claim for costs — but if those are claimed the court (and the paying party) will require full details of the work undertaken by the legal representatives and the way in which the disbursement claimed has been calculated. They cannot, however, include notional disbursements such as counsel’s fees where counsel was not instructed.
Of course, the principle of proportionality applies just as much to LiPs as it does to parties who are represented by lawyers.
If the legally represented party is claiming costs the requirement of proportionality does not mean that the costs of a legally represented party must be reduced below a reasonable level of remuneration because the other side is a litigant in person restricted to payment of £18 per hour.
It is clear that, in the current legal landscape, there will be many more LiPs than previously, and both LiPs and lawyers are going to have to cope with that. Undoubtedly, that will place significant burdens on people having to represent themselves in forums with which they are unfamiliar; but it will also place lawyers in difficult situations, saddled increasingly with additional burdens and responsibilities.
  EWCA Civ 1537,  1 WLR 795,  2 All ER 430: A case which, for civil lawyers, marked a noticeable tightening of judicial enforcement of directions, so that even minor failures to comply with court orders have resulted in cases being struck out
  EWCA Civ 1289,  C.P. Rep. 4
 At para 32
  EWCA Civ 1115  1 FLR 643
  EWCA Civ 597
  EWCA Civ 271, CA
 At para 18
  2 FLR 110
 CPR r.46.5(2) (applied by FPR 2010 Part 28)
 CPR Practice Direction 46 para 3.4 (applied by FPR 2010 Part 28)
 CPR Practice Direction 46 para 3.2
  EWHC 413
 (SCCO No 7 of 2000),  All ER (D) 436
  EWCA Civ 234,  All ER (D) 182 (Feb)
 CPR r.46.5(3)(b) and (c))
 Hart v Aga Khan Foundation (UK)  2 All ER 439
 Grand v. Gill  EWCA Civ 902
 Mealing McLeod v Common Professional Examining Board (SCCO No 7 of 2000),  All ER (D) 436.