28 February 2018

By Lloyd Nail

Claims without legal assistance

Companies often face claims or threats of legal proceedings from individuals who are acting without legal assistance. This is an increasing trend at a time when legal aid and conditional fee agreements have been restricted. Sometimes it is just a choice of the individual, potentially made in light of the value of the claim.

Since they are not legally represented, litigants in person may not know of the relevant court rules (pre-action protocols, Civil Procedure Rules (CPR), Practice Directions and Court Guides) which apply to legal proceedings, or may view them as ‘technicalities’. As a result, those defending such claims often face being given documents which are not compliant, either in the way they have been drafted or in the way they have been provided. 

No special treatment

The UK's highest court, the Supreme Court, has confirmed that those acting without legal representation are not given special leeway in having to comply with the relevant court rules or orders of the court.

The court concluded that while a lack of legal representation may justify some allowances in case management decisions and in conducting hearings, it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders. Doing so would be unfair to the other party and contrary to the overriding objective of the court rules, which requires the courts to enforce compliance with those rules (CPR1.1(1)(f)).

More specifically, litigants in person facing an argument they have not complied with the rules sometimes seek to argue that such non-compliance should be waived since the rules are technical and they are not legally represented. The court rules contain a number of provisions empowering the court to waive compliance with procedural conditions or the ordinary consequences of non-compliance. The most significant is CPR 3.9, which confers a power to relieve a litigant from any “sanctions” imposed for failure to comply with a rule, practice direction or court order.

However, the Supreme Court confirmed that in such applications for relief it is well established that the fact that the applicant was unrepresented at the relevant time may, at best, be a factor in cases “at the margin” (i.e. it might increase the weight to be given to some other, more directly relevant factor in factor of granting relief). It is not in itself sufficient reason to grant relief. The rules do not (in any relevant respect) distinguish between represented and unrepresented parties.

The court also confirmed an individual cannot say that the relevant court rules are too obscure or hard to access or not known to them. They are clearly available on the internet and referred to in court resource packs aimed at aiding litigants in person.

The decision

The Supreme Court found that the litigant’s claim was time barred because he had served his claim by email, which the rules say is only permissible if the other party has agreed to service by email. As it had not, the judgment (PDF) found that the service was therefore invalid.

If facing a claim by a litigant in person, do not assume they will be held to a lower stand of compliance with the strict court rules; consider challenging non-compliance.

Should you wish to discuss any aspect of this article/issue, please contact Chris Jackson or Lloyd Nail, or your usual Burges Salmon contact.

Key contact

Chris Jackson

Chris Jackson Partner

  • Infrastructure
  • Procurement and State Aid
  • Transport

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