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Going it alone as a litigant in person

Miriam Nothman might be a lawyer’s worst nightmare. She was the last litigant in person to take a case to the House of Lords – and win it. Proof, if needed, that not all litigants in person make frivolous claims. However, the Court of Appeal’s judgment in Wright v Michael Wright Supplies Ltd indicates that the judiciary has concerns over the increasing number of litigants in person and the effect this is having on the conduct of litigation.

Wright v Michael Wright Supplies Ltd

In his opening remarks, Ward LJ was uncompromising in identifying the reason for the growth in the number of litigants in person. He referred to the reduction in availability of legal aid and did not mince his words in referring to the trial judge having to bring order to the:

“…chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences.”

It was followed by the opinion that:

“…justice will be ill served indeed by this emasculation of legal aid.”

Strong language indeed.

The shifting patterns of litigation

Ward LJ saw two consequences of this shift in the pattern of litigation:

  • Judges are increasingly having to micro-manage litigation to ensure fairness and that parties focus on the issues that need to be resolved.
  • Litigants in person tend to be more intransigent and less inclined to mediation than those who are represented.

With this in mind, Ward LJ cast doubts on his own decision in Halsey v Milton Keynes General NHS Trust, where the Court of Appeal held that parties could not be forced to refer their disputes to mediation as that would be an unacceptable obstruction to their right of access to the courts.

Ward LJ considered that CPR Part 26.4(2)(b) might give the court power to direct a stay for mediation even when the parties had expressed unwillingness to go down this route. He looked forward to a review of the Halsey decision by a “bold judge”.

The decision in Wright v Michael Wright Supplies may reflect the difficulties the first instance judge, HHJ Anthony Thornton QC, found in resolving the tangled picture placed before him. The appeal was allowed on the basis that the judge had wrongly assumed that both parties agreed to a hearing without oral evidence, whereas one party had in fact contended that a witness should be cross examined.

What can we conclude from this decision?

It seems likely that the number of litigants in person will increase with legal aid becoming ever less available. In Wright v Michael Wright Supplies both parties were unrepresented but it is worth remembering that the SRA’s Code of Conduct effectively requires solicitors not to take unfair advantage of an opposing party’s lack of legal knowledge where they have not instructed a lawyer.

From my experience in acting against litigants in person, and looking back to earlier guidance from the SRA and the Law Society, there is a risk that one’s duty to the client can be subsumed to the interests of  integrity and behaving fairly towards opposing parties.

And what of Halsey?

As Ward LJ pointed out, in Halsey the court alluded to the costs consequences that can follow an unreasonable refusal to mediate. It remains to be seen whether it will ever be acceptable for the court to insist that parties mediate, despite their express wish not to do so. It may be thought that the court has sufficient sanctions because it can impose weighty costs consequences on those who refuse without justification to go down the road of mediation.

2 thoughts on “Going it alone as a litigant in person

  1. A very topical and interesting analysis Michael. I remember as a solicitor in private practice that I was always much more cautious when dealing with a litigant in person, not only only because of professional duty or the fact that the courts allowed more leeway, but because their claims tended to be driven not just by money but because they thought they had right on their side.

    As for the attitude of the judiciary to litigants in person, I find the frustration understandable but, with the ongoing and continuing assault on legal aid, this situation will only become worse and the pace of the administration of justice will slow enormously.

  2. Elizabeth Repper has also written about mediation in light of Sir Alan Ward’s comments in Wright v Michael Wright. She also considers some of the changes to the Civil Procedure Rules, particularly costs management and proportionality, and the potential impact on mediation.

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