Beware litigants in person

Two recent cases illustrate the apparent problems that the proposed increase to the small claims limit will create for Litigants. Currently, with exceptions for personal injury and housing disrepair claims, the Small Claims Court limit is set at £5,000. A Litigant in the Small Claims Court cannot recover his solicitor’s costs from his Opponent, unless he can show that the Opponent acted unreasonably. This, traditionally, is/was always difficult to do with the result that because solicitor’s fees could not be recovered, the Litigants ended up representing themselves.

In April 2013, the Small Claims limit will increase to £10,000 with a likely result that more Litigants will choose or be forced to litigate as Litigants in Person, concerned with incurring a solicitor’s bill without being able to recover it from their Opponents.

Litigants in Person have a steep learning curve to climb if they choose to litigate themselves. As a result of this, cases against Litigants in Person are often an expensive and drawn out process as Court deadlines are missed or evidential rules not abided by which means that the Judges hearing the matter must often extend deadlines or adjourn hearings to enable the Court process to be properly dealt with. With the pressure on the Court service, like all government funded institutions, financial cuts are leading to delays. The concern with the likely increase in small claims matters being conducted by Litigants in Person, is that this will put increased pressure on the already stretched Court service.

In Tinkler and Another v. Elliott [2012] a Litigant in Person did not attend at trial and produced a medical certificate of unfitness to attend at Court. This did not impress the trial Judge who went ahead with the trial in the Litigant in Person’s absence, and found against them. The Litigant in Person appealed the Judgment which went to the Court of Appeal. There, Lord Justice Maurice Kay, dismissed the appeal saying…“an Opponent of a Litigant in Person is entitled to assume finality without expecting excessive indulgence to be extended to the Litigant in Person”. He said, regarding the Litigant in Person, that a lack of understanding of procedures “does not entitle him to extra indulgence”.

In Fernandez v Kenny and Others [2012], the Court of Appeal concluded that they had to take into account the merits of a defence which might give rise to injustice. They found that in this case such a degree of conflict existed in the Defence filed by the Litigant in Person and that as he had not produced any witness statement, and the evidence that he relied upon was profoundly unsatisfactory, it was impossible for the Appeal Court to say that the Circuit Judge’s original findings had been wrong.

While these cases show that the Court respects the right of a Litigant in Person to be self-represented, it also shows that they will succeed or fail on their own understanding of the law. The Court will not give the Litigant in Person advice or assistance to get their case in order. With the Small Claims Court increase set for April 2013, and a later proposed increase suggested thereafter to a small claims limit of £15,000, we may have a legal landscape with Litigants in Person, a slower Court process and little leeway being given to Litigants in Person. The fear being that in this brave new world, there are unlikely to be any winners, only losers. Perhaps, however it will be more straightforward to be able to demonstrate that a Litigant in Person has acted unreasonably and is therefore liable for the representing party’s costs. We will have to wait and see, but Litigants in Person will not seemingly be given leeway just because they are self-represented.