Litigants in person

The decline in public funding and the expense of CFAs may have contributed to what seems to be a steady increase in those choosing to represent themselves rather than instruct a solicitor.  For any Defendant, the experience of dealing with a litigant in person (‘LIP’) with little or no grasp of the legal system is time consuming, expensive and often frustrating.  Managing a LIP’s expectations can be tricky and at times may feel like a full-time job.  The Courts are rightly concerned to ensure that LIPs have, and are seen to have, access to justice.  As a result judges are generally sympathetic to LIPs and often view Defendant’s solicitors as having a role that can be difficult to reconcile with duties to the Defendant, ensuring the LIP understand the litigation process and are not prejudiced by lack of resources.  This article provides some top tips on how to manage a claim with a LIP and takes a looks at the tactics you may employ against vexatious litigants.

Checklist on receipt of Proceedings:

• Always advise the LIP to obtain legal advice. Free legal advice is available from the Litigants in Person Service and Citizens Advise Bureau.  Most Claimant lawyers provide a free session to assess whether a claim has merit and discuss funding options.  This invitation may be taken as a slight by the LIP but it is something that the Court will expect to see, particularly if considering a strike-out or costs application.
• Has the LIP made a claim before and are they potentially vexatious?  While we look at handling vexatious litigants later on in this article, if the name on the Claim Form appears familiar check that they have not made a claim about the same issue previously.  If they have, consider notifying the Court immediately and/or striking out the claim.     The Courts keep a list of vexatious litigants or those subject to Civil Restraint Orders.
• Check that the LIP’s contact details (including home address, email and telephone number) are correct to ensure all correspondence and documents you send are received.   Remember that if documents need to be served by a deadline the luxury of service by fax (or email) may not be available and do not leave this until the last minute.
• Was the Claim Form issued within the limitation period?  Like anybody else, a LIP has 3 years from the date of injury to issue proceedings subject to any arguments about date of knowledge i.e. he did not become aware of the injury until a date later than the date of incident.  Claims issued outside of the limitation period are statute barred.
• Was the Claim Form served within 4 months after issue?  If not, and the LIP cannot issue a further Claim Form because limitation has expired consider disputing the Court’s jurisdiction when you serve the Acknowledgment of Service form.  
• Has the LIP complied with the Civil Procedure Rules and served Particulars of Claim, a  Schedule of Loss (both documents require a signed statement of truth) and a medical report substantiating the injuries claimed from the correct expert.  If not, an application requiring him to comply with the Court rules (CPR PD16) by serving these documents may be necessary.  In many cases this will produce further information, for instance that the LIP had previous solicitors with LSC funding until receipt of an unsupportive expert opinion.

Resolving the Claim

DO:

• Treat the LIP with courtesy and sensitivity throughout the litigation process.
• Take the claim seriously and investigate each allegation as you would with a represented party.  
• Take time to explain to the LIP each step of the litigation process.  We send the LIP copy Orders in case the Court fails to serve them and frequently send copies of the relevant CPR sections they need to comply with in advance.  The Court expects a represented party to assist a LIP.  If the LIP understands the litigation process it will make your life easier or in difficult cases at least the LIP will not be able to rely on ignorance of the rules.
• Restrict contact to one nominated person if telephone or written correspondence becomes aggressive or difficult. In some cases it will be necessary to insist on written communication only.
• Obtain clinicians’ comments and expert evidence promptly.  Consider early service of evidence; it may help the LIP understand the Defendant’s case and manage expectations. 
• Consider settlement as soon as possible if the claim is meritorious.  You may have to encourage the LIP to take legal advice again at this stage.
• Apply for Summary Judgement if you have evidence that the claim has no real prospect of success or apply to strike out the claim if it is frivolous, vexatious or an abuse of process.
• Be prepared to take technical points if there has been a procedural irregularity that is more than just a nuisance and ask for your costs to be summarily assessed.  An unless order or an adverse costs order can be a useful tool to focus a LIP’s mind on the case.
• Remember that a LIP may be entitled to recover costs for the work they have done in connection with the case, if successful.
• Reserve the case to the same District Judge or Master. If a District Judge or Master has got to grips with the issue and dealt with the LIP robustly you can ask him or her to reserve it to the same District Judge or Master to avoid someone else having to start afresh at the next hearing.

DON’T:

• Assume that the LIP does not know what he/she is talking about.
• Presume that the claim has no merit even if you have had experience of the LIP before.
• Get involved in lengthy discussions, correspondence or disputes. Correspond with the LIP in writing if telephone calls are difficult but keep to the point. This avoids misunderstandings and provides evidence to the Court that the Defendant is treating the Claimant fairly and with consideration from the outset.  However, there are vexatious LIPs who will argue the same issue indefinitely and at length.  If you have answered the point already, and are sure, say so politely and do not go back there each time.
• Use legal jargon. Make sure the LIP is clear about what is required from them and use lay terms.
• Forget that that extra time and money is often required to manage claims with LIPs. The litigation process may be drawn out and more expensive than one may anticipate.
• Make threats.  There can be a fine line between explaining that a course of conduct is likely to lead to a costs order and giving the appearance that you are trying to use the LIPs lack of legal or financial support unfairly.

Vexatious Litigants

A vexatious litigant is defined as someone who ‘habitually and persistently and without reasonable grounds’ issues claims’.  They can be tricky to manage, time consuming and expensive. If a Claimant has brought the same or similar claim before or has issued a number of claims which lack merit or sense what steps can you take? 

1. Strike out the claim 

If there are no reasonable grounds for bringing the claim, it is an abuse of the Court’s process or if there has been a failure to comply with a rule, practice direction or court order you can apply to strike out the claim.  This is often the quickest and cheapest way to deal with a vexatious claim. However, some LIPs just issue the same claim again in the same or a neighbouring Court and you cannot just repeat the exercise again and again.

2. Civil Restraint Orders (CRO)
 
 For the more persistent Claimants consider applying to the Court for one of three types of CRO:

• A limited CRO.  This prevents a Claimant from making an application without the permission of the Court where he or she has made two or more applications in the same  case without merit.
• An extended CRO.  This prevents a Claimant from making an application for a specified period of time (up to two years) where he or she has continuously brought claims or made applications without merit.
• A general CRO.  This prevents a Claimant from bringing a claim or making an application without the permission of the Court for a specified period of time (up to two years) where there is already an extended civil restraint order and the Claimant continues to bring claims or make applications.

3. Apply to the Attorney General declaring the Claimant vexatious.

Denial of a Claimant’s access to justice is a serious step and not one the Court will agree to lightly.  This is demonstrated by the fact that only 179 vexatious litigants have been declared by the High Court since 1955.  (go to www.hmcourt-service.gov.uk/infoabout/vexatious_litigant to see the current list).  An application pursuant to Section 42 of the Supreme Court Act 1981 by the Attorney General is required to declare a Claimant vexatious.  The Attorney General can apply to the High Court to prevent a litigant instituting any proceedings without the leave of the High Court, either for a specified period or indefinitely under but such an application is only likely to be made in exceptional circumstances.  It was for this reason that CROs were brought in and they are a far more flexible and accessible tool.

If you have any queries about how best to deal with a LIP or are struggling with a vexatious litigant please contact us and we can offer further advice and assistance.