Should a litigant in person be entitled to ‘special rules or indulgences’?

family law

I recall that when I was practising litigants in person were a relative rarity, at least in family law matters. Yes, you did come across them, but in the vast majority of my cases the party on the other side was also represented.

All that has of course now changed. Four years after I gave up practising legal aid was abolished for most private law family matters. As a result, now more than a third of all family court cases feature unrepresented litigants on both sides. Huge numbers of litigants are having to find their way through the minefield of law and rules without any legal assistance.

With the litigation landscape so changed, the question arises: is it time to make the rules simpler for litigants in person?

The question came to mind in particular because of a case that was before the Supreme Court last week. The case concerned a negligence claim by a litigant in person against his former solicitors. Unfortunately for the litigant, the claim came unstuck at the first hurdle, due to his misunderstanding of the rules relating to service of claims. He served his claim form on the solicitors by email, apparently unaware that under the rules service by email is only allowed if the party who is to be served has previously indicated in writing that they are willing to accept service by email, and given details of their email address. The solicitors had not so indicated, and thus the claim was not properly served. Accordingly, the claim was subsequently ruled invalid.

The litigant challenged this, but a district judge ruled that he was not entitled to ‘special rules or indulgences’, and in March 2016 the Court of Appeal upheld that decision. The litigant, now with the assistance of lawyers, has taken the case to the Supreme Court, arguing that the rules are simply too complex for litigants in person to navigate – with no appropriate guidance available, compliance with the rules was impossible, and the law should make allowances.

The case actually prompts two questions. Firstly, should the law make special allowances for litigants in person? Secondly, if not, should the rules be made simpler so that litigants in person can more easily understand them?

As to the first question, I really don’t see how this could work. Obviously, rules should apply equally to all litigants, and it would be quite unfair to represented litigants if their unrepresented opponents were treated more leniently when it came to compliance with the rules. Having said that, I suspect that many judges do already do this to a degree, whether consciously or not, simply to enable cases to advance with reasonable speed.

In the end though we must remember that rules are there for a purpose, and if one party is exempt from complying with a rule then the other party is going to be at a serious disadvantage. For example, the service rule, which, incidentally, is similar to a rule applicable to family proceedings, is there to ensure that the other party knows to check their email for receipt of the claim (in case, for example, the email is wrongly classified as junk mail), and that the claimant sends the claim to the correct email address. Without the rule it is quite possible that the other party will not see the claim, and be unaware that it has been issued. With such a ‘clear’ rule, it is impossible to see how a litigant in person might be given special indulgence to allow for ‘unexpected’ service by email without the other party being disadvantaged.

As to the second question, I’m sure that it is always possible for the rules to be simplified, and for litigants to be given more assistance, for example through a web-based help system. In the end, though, there is surely a limit to how much simplification can be done. The rules deal with complex issues that sometimes just can’t be made any simpler. In fact, my own view of the service by email rule is that it is already pretty clear, with perhaps the only issue being that the rule is not all in one place: the litigant must look at both Part 6.3 of the Civil Procedure Rules, and also at Practice Direction 6A – it would surely be preferable if it were all in the same place.

There is speculation that if the Supreme Court rules in the litigant’s favour then the Civil Procedure Rules (and no doubt also the Family Procedure Rules, which cover family cases) will have to be redrawn for the benefit of litigants in person. In view of the changed litigation landscape, I suspect that that will be happening anyway. Encouragement from the Supreme Court will only make it happen more quickly than would otherwise have been the case.

Photo by Véronique Debord-Lazaro via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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5 comments

rum - November 30, 2017 at 6:28pm

I read this post laughing to myself. This case is ridiculous. I do not say this lightly, but i say it in the context of my experience. You can have your case struck out for sending an email instead of serving it. However a solicitor can continue to represent his client, after evidence of hidden assets, non compliance of a court order x 2, over a year old, and submitting a valuation from a friend, rather than following the order. They can try to strike out the case, whilst being wealthy, pretending they have no money. They can even be told by a Judge district level, and circuit level that they can do what ever they like ! as the applicant’s numerous applications for disclosure and numerous summaries of the misconduct from the solcitors and baristers are backed by the sitting judge . This man get’s his case struck out for emailing his application ! It makes my blood boil . L I P . should abide by the rules. However the solcitiors and baristers should disclosure or not act after receiving evidence . Do they ??? No . Does the judge attach a penal notice to applications of non disclosure by a L I P , ?? NO . Does the next judge on appeal , grant the C2 and the Legal services order with all needed as per FPR etc , NO . Because there is no respect for . L I P . This case summary makes my blood boil ! The rules do need to change . But the non disclosing, conduct breaking parties, and representatives need to follow their codes of conduct tooooooooo. They dont . The relevant parties are not even interested . Fraud all the way and give them a big pat onthe back, whilst you are at it .

John Brick - December 2, 2017 at 2:44pm

I feel your pain. I know only too well the discrimination that some (maybe all) courts exercise in respect to LIP’s. They don’t like ‘up-starts’ challenging the power and authority of the ‘legal profession’. Don’t forget, nearly all judges are just promoted solicitors and barristers – in my experience some of the most deceitful and practiced liars that exist. I proved perjury by a solicitor at court. What did the judge do in light of the unchallenged evidence? Put it on file! The receipt, of which the case was riddled, has cost me some £1/3 million in improper costs awarded to this clearly criminal solicitor. It is ‘white-collar crime’ of the highest order. Judges are going to side with their ‘professional’ mates.
The Civil Justice Council (CJC) is presently debating the role of ADR (Alternate Dispute Resolution) in respect to legal disputes.

I have made a written submission to the CJC stating that ADR needs to be made compulsory ahead of/instead of court proceedings. This will help minimise, or eliminate, the dirty tactics, sharp-practice and down-right lies that some members of the legal profession engage in to improperly win a case in a court arena.

The ADR process would help LIP’s have a better chance of both engagement and presentation of issues and for the truth to dominate, and hopefully avoid a lazy, disinterested, incompetent or down-right corrupt judge from serving injustice on the innocent and rewarding the guilty.

My experiences have left me with the clear view that the present legal and judicial process is fundamentally perverse and corrupt, and denies many innocent parties any chance of justice. And so it will remain, unless those who object, make protest.

I also have a petition to go to Parliament that ‘judges discretion’ is properly defined and controlled. On more than one case, I have had judgements made which are contrary to the law, the evidence and the facts (but there was masonic affiliations between the judge and the solicitor, acting for the other-side). Permission to appeal is refused because a judge has ‘wide powers of discretion’ to make whatever decision he wants. It is a dictatorship, with all the abuse of power that confers. The establishment describes it as ‘The Great British Justice System’ . And Santa Clause is real. Bent solicitors, barristers and judges (often the same individuals) are untouchable in this corrupt environment.
(*Comment moderated)

John Brick - December 2, 2017 at 11:36am

All parties in a legal dispute should be treated equally, and it is the job of the court under CPR 1 -overriding objectives – to ensure this is done as far as practically possible.

With costs of legal representation being so expensive (arguably some 20x /hr more than most people earn), the status quo is often justice for those who can afford it. This immediately contradicts the ‘proportionality’ concept of the very first CPR (Civil Procedure Rules)

It is a massive undertaking for LIP’s to try and represent themselves against sharp solicitors and barristers, not just because of a lack of knowledge of the law, but to be able to combat tactics used by unscrupulous legal representatives.

The law says that every man has the right to defend himself. The system is orchestrated such that, predominantly, unless you have very substantial funds to pay someone to do this for you, or literally thousands of hours to research all yourself (with the hope of understanding often convoluted legalese) you start off in a very disadvantaged place.

Not only should it be made much easier for LIP’s to access justice by their own hand, it should be part of the school’s curriculum. Knowing, and being able to defend, one’s rights, should be fundamentally taught with as much importance as ‘reading’ writing and arithmetic’.

I suspect that the ‘system’ however, does not want people educated in these matters, not least because the legal professions may lose revenue. As most judges are ‘promoted’ solicitors and barristers, I don’t expect to see any desire by the courts to make any serious effort to help people become better equipped, or more empowered, to act for themselves in legal matters.

Charlie Foulkes - December 4, 2017 at 3:57pm

Having been a LIP in 2 civil cases, I can tell you no matter how you try to follow the rules, so much is obscure and perverse (in the old-fashioned sense) that your opponent may trip you up very easily. I don’t find that to be just, in fact it is horribly unfair. Solicitors earn a great deal of money for old rope and meanwhile justice suffers. Cases should be tried on their merit not on how well someone adhered to a bunch of stuffy old rules that only serve those in the profession.

John Brick - December 4, 2017 at 4:37pm

Remember judges are just solicitors and barristers. Of course the system favours their mates in the profession. I’m sure that there are some decent judges, as there may be some decent solicitors and barristers, but I find many to be lazy, disinterested, incompetent or just down-right corrupt.

I find that the courts in the UK ‘cherry-pick’ the rules as suits them. And judges ‘discretion’ (ie doing whatever they like irrespective of rules, evidence and the truth) is now so extensive that the appeal process has little or no meaning.

My experience is that the UK judicial system is fundamentally and endemically corrupt. (Perhaps this not surprising as it is run by the legal ‘profession’)

Unfortunately the general public are either not aware, not interested (until they are a victim) or simply incapable and powerless to do anything. The dictatorship is with us. (Did I mistakenly hear we had won the war against Hitler and a thuggish dictatorial regime, to run a country by a few, for the few?)

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