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
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
- Treat the LIP with courtesy and sensitivity throughout the
- 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
- 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
- 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.
- Assume that the LIP does not know what he/she is talking
- 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
- 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.
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
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
- 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
- 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
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
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.