The number of litigants in person is on the rise according to The Personal Support Unit (PSU), a voluntary organisation which provides support to litigants in person. They have reported that such cases in the Manchester Civil Justice Centre are up by 89% in the four months to 30 September compared with 2010. Solicitors, claims managers and legal managers often find the experience of opposing litigants in person frustrating and time consuming. Whilst this increase in numbers could be down to the recession (for example in the family courts), many solicitors predict that the number of litigants in person will increase significantly when the government cuts access to legal aid in civil matters and when Conditional Fee Agreements are scrapped. This article looks at what we can expect from litigants in person and some tips for managing them.
The Type of Litigant in Person
According to PSU, many litigants in person have significant health problems, often suffering from stress, anxiety or depression. Over half were from a minority ethnic group, and for one-third English was not their first language.
In an article published by the Gazette (18 August 2011) District Judge Peter Glover described the typical litigant in person who appeared before him stating “Many do not cope well with either the written or the spoken word. Many are unable properly to organise their paperwork. …..Numeracy skills are not commonplace and many are financially illiterate. In addition to these educational shortcomings, they tend to lack any psychological empathy with their opponent and are unable to see the other’s point of view…. Add to this an understandable fear of being involved in court proceedings, no real concept of the legal process and a subjective certainty in the justice of one’s own case, and it is plain the opportunity for negotiated settlement is greatly reduced when even one party is unrepresented, let alone both.”
Added to that, in the writer’s experience, many litigants in person either inherently distrust solicitors/the legal system as a whole or have already been turned away from one or more firms of solicitors because their case has no reasonable prospects of success. Also more often than not, they are very determined!
Tips when Opposing a Litigant in person
It can sometimes feel that the Courts are too sympathetic and unduly lenient to litigants in person; exercising far more patience with them than they would with an advocate. As frustrating as this can sometimes be, Judges must assist, and be seen to assist, a litigant in person, so that they are on an equal footing with their represented opponent. However, the Courts may struggle to cope with the expected increases in the number of litigants in person. The PSU’s director, Judith March, thinks that budget cuts have removed many court staff who would normally provide basic information to litigants in person.
District Judge Peter Glover stated “we are nearing the limits of our capacity and inventiveness, there is no hope that the county court can survive the withdrawal of publicly funded legal assistance without significant increases in delay for other court users”. We should therefore be trying to help the Courts as much as possible, providing as much information as possible and filing any documentation which the litigant in person has failed to file. The Courts will make costs order against litigants in person, but to get a costs order we need to demonstrate that we have made every effort to resolve the proceedings and have carefully explained the process and costs consequences to the litigant in person.
When dealing with a litigant in person consider the following:
- It can feel as though you are doing the litigant in person’s job for them, but write to the litigant in person as soon as possible setting out the legal process and the possible costs consequences if they fail to comply with a court order or if their claim fails. A Judge will be far more sympathetic towards you if you can demonstrate that you have not tried to gain any unfair advantage over the litigant in person.
- If the claim has no merit and it is likely that you will make a strike out application at some point, consider making an early “drop hands” offer (i.e. if they withdraw their claim you will not pursue them for your costs). Explain what the costs consequences will be if the offer is rejected and their claim fails. A Judge will be more likely to award you your costs if you can demonstrate that you have given the litigant in person an opportunity to walk away without any costs consequences.
- Again, whilst it may feel as though you are doing everything on the matter, the Court will appreciate it if you can provide as much information/documentation as possible (even if it is not your responsibility to provide it) when making applications/before a hearing.
- Remember that litigants in person are often suspicious, angry and very determined. Follow up any conversations in writing, summarising the conversation that you have had.
- Whilst from a costs perspective it may be in your interests not to, you will need to demonstrate that you have advised the litigant in person to seek legal advice. It is worth doing this at every key stage in the proceedings.
A Civil Justice Council working party will make recommendations to the justice secretary on access to justice for litigants in person by 31 October.