No “special treatment” for LiP as judge weighs interests of represented party and the public

Bristol: Every indulgence given to a LiP casts an extra burden on the represented party

A litigant in person (LiP) is not to be given “special treatment” as the rules in the part of the law his case concerns are neither hard to find nor “particularly difficult to understand”, the High Court has ruled.

His Honour Judge Paul Matthews, sitting in Bristol as a High Court judge, said the interests of the represented party and the public also had to be taken into account.

EDF Energy Customers Ltd v Re-Energized Ltd [2018] EWHC 652 (Ch) was an appeal brought by the debtor company, Re-Energized, against a winding-up order.

A director of the company, Luke Watson, appeared for the company and so it was treated as a litigant in person.

After a detailed review of the authorities on LiPs, HHJ Matthews derived four principles:

  • There is a general duty on tribunals to assist litigants, depending on the circumstances, but it is for the tribunal to decide what this duty requires in any particular case and how best to fulfil it, whilst remaining impartial;
  • The fact that a litigant is acting in person is not in itself a reason to disapply procedural rules or orders or directions, or excuse non-compliance with them.
  • The granting of a special indulgence to a litigant in person may be justified where a rule is hard to find or it is difficult to understand, or it is ambiguous; and
  • There may be some leeway given to a litigant in person at the margins when the court is considering relief from sanctions or promptness in applying to set aside an order.

He described Mr Watson as an “articulate and knowledgeable layman”, but bore in mind that he chose not to seek legal advice, including on some letters from the respondent’s solicitors which he misconstrued.

HHJ Matthews said: “What the solicitor said [in the letters] was correct as far as it went. He could have said more (indeed, he could have said rather less), but there was no duty, as Mr Watson accepts, on those solicitors to advise him as the adverse party. In my judgment those emails were not misleading, and do not alter the basic position.”

He said the rules in this part of the law were not hard to find or “particularly difficult” to understand.

“Of course, I accept that a layman without any experience of finding his way round a law book or the statute book will take longer to do so, and may fall into error more easily and more frequently than a trained lawyer. That is, after all, why it takes training to become a lawyer.

“Yet Mr Watson had been able to put together a sensible skeleton argument and a bundle for the injunction hearing, a written argument before the district judge, and also a bundle for this appeal. That was of course his choice, as to how he allocated the company’s available resources.

“But he cannot complain if it does not produce the result he wished for.”

HHJ Matthews said he had also to consider the position of the represented party and the public generally.

“Every indulgence given to a litigant in person casts an extra burden on the represented party and on the court system. This extra burden is usually marginal, but it mounts up over time.

“Yet a represented party too may have limited resources, and may have had to make choices, indeed sometimes sacrifices too, in allocating resources so as to be able to afford representation. Delays and lack of finality may impose unwanted and unwarrantable costs on him or her too. The same is true of the court system…

“So, overall, in my view there should be no special treatment for Mr Watson here because he was a litigant in person at first instance.”

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