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The vexing issue of litigants in person and civil procedure: part 1

Two recent cases juxtaposed illustrate the courts’ dilemma when dealing with litigants in person in the post-Jackson environment.

Whilst the rules now place increased emphasis on the need for compliance with court rules, orders and directions (and there are strict criteria for the grant of relief from sanctions), against that is the concern to provide access to justice and the challenges that can arise with increasing numbers of litigants in person.

Jones v Longley: the courts “cannot and do not” modify the rules for those who are unrepresented

Jones v Longley started as a Part 8 claim by the executor of a will for an order, under the Administration of Justice Act 1985, to remove the first defendant (D1) as co-executor. Subsequently, D1 (a litigant in person) was given permission to file and serve a counterclaim.

Initially, D1 filed a “counterclaim” (17 pages) plus another 80-page document which referred to other documents totalling about 2,000 pages. The documents were in a “pedantic and prolix, meandering” style and lacked particularity in important places. Further, there were no headings or paragraph numbers although the paragraphs were often very long. The documents did not comply with the relevant procedural rules, practice directions and other guidance.

D1 was given a “second bite of the cherry”. At a hearing on 30 July 2015, Master Matthews directed D1 to file and serve on the claimant:

“a brief statement of case summarising his counterclaim, which shall comply with the requirements of part 16 of the Civil Procedure Rules 1998 and its Practice Direction, and with the requirements of Chapter 2 and Appendix 2 of the Chancery Guide”.

On 9 November, the claimant applied to strike out the revised counterclaim, under CPR 3.4(2)(a) and (b), on the basis that it did not comply with the procedural rules or the master’s order.

On the hearing of the application, Master Matthews saw “force” in the three key criticisms:

  • The counterclaim was too dense and prolix to allow a point by point response.
  • It mixed together claims in different capacities against different parties.
  • The claims were not properly particularised, and there was no coherent case on causation.

Further, the counterclaim was still formally defective.

Taking account of the Denton principles, and looking “in the round”, Master Matthews asked himself why he should grant a further indulgence to a party who showed no signs of understanding what was wrong with the statement of case, or of obtaining advice, who had not applied for the necessary permission to bring a counterclaim against third parties, and whose case seemed (as far as one could glean) “at best weak”.

He noted the need to consider the position of the claimant (who had had allegations hanging over him for some years) and of other litigants waiting for their cases to be dealt with.

He also observed that courts’ resources are “sadly limited” and there must come a point when litigants in one case have had as much of the resources as is proportionate. He recognised that it is “a strong thing” to strike out a statement of case, particularly that of a litigant in person, but concluded that he should strike out the counterclaim as an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings (under CPR 3.4(2)(b).

The approach to litigants in person

Interestingly, at paragraphs 56 to 59 of his judgment, Master Matthews specifically addressed “The position of litigants in person”.

He identified this as a case where “many, perhaps most” of the problems arose from the fact that D1 was not a qualified lawyer and appeared to have no experience of this type of litigation (it was unclear why D1 had chosen to act in person, as he had indicated that he might seek legal representation to plead the counterclaim).

The master was in no doubt about the appropriate approach:

  • He saw it as “desirable to stress” that there are not separate procedural rules for those who are legally represented and those who are not, and that the courts “cannot and do not” modify the rules for those who are unrepresented. Although there might be a little more leeway for litigants in person “at the margins”, where judges are exercising their discretion (or in cases where the application of a rule might be affected by lack of knowledge or experience of the legal process), such cases are “rare”.
  • Master Matthews saw it as significant that the counterclaim in issue was a revised version produced after comments by the court and criticisms by the claimant. In his view, D1 knew what was wrong with the first draft and had had a second chance (by taking advice, or considering the relevant rules) to produce a compliant counterclaim.

Master Matthews was critical of the drafting of the counterclaim. However, interestingly, he saw the need to include in his judgment an explanation of what the wording of his own order giving D1 a “second bite of the cherry” had been intended to achieve.

He explained (at paragraph 14 of his judgment) that his “intention” had been that D1 should prepare “a short but well-organised statement of his counterclaim, which could refer to and use the existing counterclaim as voluntary further particulars, thus acting not only as a statement of case in its own right, but also as a kind of road-map and index to the existing documents, which need not then be wasted.” He noted that D1 “appear[ed] however to have misunderstood my purpose”, and had understood that the original counterclaim would stand as the particulars of the claim, with a short summary “to aid transparency”.

The precise words used in court are not set out in the judgment, but one might have a degree of sympathy for D1.

Master Matthews’ order did make clear the need for compliance with the relevant procedural requirements, referring to CPR 16, PD 16 and additional guidance in the Chancery Guide. This shows the complexity of our current court rules. Here, a litigant in person, recognised as apparently having no experience of this type of litigation, was pointed to three separate places he needed to look at in order to get the full picture regarding the procedural requirements. Master Matthews’ summary (in paragraphs 15 to 18 and paragraphs 37 to 47 (on the particular requirements for counterclaims)) takes up about four and half pages. This raises the question of who the procedural rules should be aimed at: judges, lawyers, or the parties themselves (particularly given the significant increase in litigants in person).

The master recognised the seriousness of striking out a statement of case, particularly of a litigant in person, but concluded that it was appropriate in all the circumstances of this case. It may be that the fact that D1’s counterclaim appeared “at best weak” made the master more relaxed about striking out the counterclaim. Nonetheless, this was robust case management.

Barons Bridging Finance: relevant that the party was a litigant in person

The approach of the Court of Appeal, in Barons Bridging Finance 1 Ltd v Barons Finance Ltd (in liquidation), seems to have been rather different.

Here, the appellants, including Mr Gopee (the third appellant, a litigant in person) challenged a declaration that an assignment of the book debts of the respondent, Barons Finance Ltd, was void under section 127 of the Insolvency Act, having been made after the commencement of the company’s winding up or, even if that were not the case, should be set aside (a) under section 238 of the Act as a transaction at an undervalue and (b) under section 423 as a transaction to defraud creditors.

The issue on appeal was whether Mr Gopee had had a fair trial on the issue of the validity of the assignment. The key complaints were that the judge below had refused to entertain Mr Gopee’s disclosure application, issued seven days before the trial, and had also refused to allow Mr Gopee to rely on a four-page witness statement and 104-page exhibit, that he produced at the hearing. No good reason had been given for the delay or the failure to seek an extension.

What is striking is the different tone adopted by the Court of Appeal, when considering the position of Mr Gopee as a litigant in person. Notwithstanding he was recognised as having had “to put it mildly, somewhat of a chequered career in the courts in relation to his conduct of the company and his other associated money lending companies”, the court here seemed to be willing to temper the rules due to his lack of legal representation.

At paragraph 40 of the judgment, Lady Justice Gloster observed that, where Mr Gopee (who “albeit an experienced litigant, was acting as a litigant in person”) had filed a defence and witness statement denying the backdating and the transfer at an undervalue, it was wrong for the judge not to have allowed him to give evidence. She held that the judge should have allowed Mr Gopee to go into the witness box and give evidence in chief in order to support his defence and be subjected to cross-examination, or the judge should have accepted his additional witness statements as evidence and allowed him to be cross-examined on them.

Talking points

Messages that can be taken from these judgments include:

  • The need for a consistent approach by the courts.
  • The challenge of making civil procedural rules simpler and more easily navigable by court users.

Civil Justice Statistics published on 2 June 2016 record that, in 2015, both the claimant and defendant had legal representation in only 58% of defended cases.

This shows the extent of the problems, and they are undoubtedly recognised at a senior level.

The million dollar question is what can be done to address them?

We’ll move on to consider that in part 2 of this blog post coming soon!

Practical Law Dispute Resolution Beverley Barton

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