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The Dekagram: 29th August 2023

Articles, News | Tue 29th Aug, 2023

So that’s it. We’ve had A level and GCSE results, the late August Bank Holiday, the now traditional holiday air traffic control meltdown, and the Summer is over. And as we hurtle towards Christmas (117 days to go, since you ask) our thoughts have turned to such esoteric questions as equality before the law. A recent judgment, undoubtedly correct as it is, has caused us some disquiet; we’d love to hear from readers what their solution to the problem (as we perceive it) might be.

Litigants in Person: Barton v Wright Hassell [2018] 1 WLR 1119 revisited

As funding litigation becomes more and more difficult (some of us are ancient enough to remember the halcyon days of Civil Legal Aid), it is to be expected that more and more litigants in person will be attempting to utilise the court system to bring and defend claims. Indeed, our friends in the judiciary tell us that they already deal with a sizable number of claims involving unrepresented parties.

In Barton v Wright Hassell [2018] 1 WLR 1119 the Court of Appeal told us that litigants in person should be treated by the courts the same way represented parties are treated; they should be taken to be aware of the Civil Procedure Rules and they should be expected to abide by those rules. Failure to follow the CPR should have just the same disastrous consequences for litigants in person as it does for any other party. In reality, of course, judges tend to be more sympathetic to non-lawyers who cannot gain access to or understand the civil procedure than they are towards those of us who’ve spent a lifetime wrestling with it. In a recent case determined by His Honour Judge Matthews, sitting as a High Court Judge, we were reminded that this approach runs counter to binding precedent.

The Claimant in Mainline Pipelines Limited v Thomas and Eleanor Phillips [2023] EWHC 2146 (Ch) was represented; the First Defendant represented both defendants himself. The claim arose out of the proposed repair by the Claimant of a multi-fuel pipeline part of which runs under the Defendants’ farm; the Defendants refused to allow the Claimant access to their property without the latter agreeing to provide what is coyly referred to in the judgment as ‘substantial compensation’. The Claimant therefore brought a claim for an injunction allowing it access to the pipeline. The Defendants filed and served a defence in the form familiar to those who have dealt with litigants in person – paragraphs were unnumbered, it was undated, and it did not carry a Statement of Truth, in contravention of CPR Part 22.1(1)(a). This, as any practitioner knows, meant that it was liable to be struck out pursuant to CPR Part 22.2(2).  

The Claimant applied for summary judgment, relying on three witness statements. The Defendants sent to the court an informal statement and various documents, but the statement did not feature a Statement of Truth and was therefore defective under CPR Part 22.3. The Claimant’s solicitors pointed this out to the Defendants, who ignored them.

In considering the application HHJ Matthews first directed himself to the Defendants’ position as litigants in person (cf the judgment at [5] to [11]). He observed:

In this country (unlike in many European countries) it is every person’s right not to employ a lawyer, but to represent him- or herself in court proceedings.

However, the other side of the coin is that there is no special set of rules in this country for litigants in person. As a general proposition, we do not have two sets of rules, one for those with lawyers and one for those without. We have only one set, which (with a few exceptions) applies to everyone. Litigants in person need to know this. A relatively recent decision of the Supreme Court, in a case called Barton v Wright Hassall [2018] 1 WLR 1119, makes clear that lack of legal representation will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court.

So far, so fair. It cannot sensibly be argued that litigants in person should be subject to a separate set of procedural rules; any such favouritism would not only offend the basic principle that all parties are equal in the eyes of the law, but would, more pragmatically, be wide open to abuse by parties formally unrepresented, but in receipt of legal advice from representatives not officially on the record as acting for them.

The judge went on to note that having made the choice not to seek representation, litigants in person must then familiarise themselves with the CPR and cannot rely on their ignorance of it as an excuse for failing to comply with the procedural rules. He pointed out that the Claimant’s lawyers had urged the Defendants to take legal advice, and that they had failed to do so. It is not, he said, the place of the judge to safeguard the interests of litigants in person, since to do so would be to show partiality towards them, therefore against their represented opponents. And this must, it is suggested, be right; every time a judge exercises his or her discretion in favour of one party, (s)he is (as a matter of logic) exercising it against the opposing party. And why should represented parties be disadvantaged in this way? Why should the judge give procedural advice or latitude to one class of parties, and not to another?

And yet. And yet it seems unjust that a party able to afford representation should be able to rely on the procedural rules unknown to an unrepresented party in defeating their case. The judge had an answer to this point:

Apart from the many textbooks and handbooks on civil procedure which are published and usually available for consultation in libraries, the relevant rules themselves are available, without charge, via the internet from the Ministry of Justice website. There are many other websites, too, some providing the full texts of legislation and of caselaw precedents, and others proffering free legal advice. In addition, there are Citizen’s Advice Bureaux and law centres which offer free legal advice…

In the modern legal services market, it is perfectly possible to obtain short, limited advice on a point of construction from solicitors, or from a barrister operating via direct access, at modest cost without engaging lawyers to defend the whole proceedings.

All of this is no doubt true.

And yet. And yet many litigants in person lack the wherewithal to search for or to find the textbooks or procedural handbooks necessary to aid understanding of the CPR. Some do not have access to the internet. Some cannot read. Many find it difficult to articulate their position in the legalistic way so beloved of legal practitioners. Most, perhaps, will be unaware that it is possible to obtain free or modestly priced legal advice. Moreover, for some, costs running into hundreds of pounds cannot be described as being ‘modestly priced’. These litigants in person find themselves adrift in a legal system with rigid and unforgiving procedural rules about which they know nothing, and which no one could possibly intuit. Should they be held to the same standard as represented persons or those litigants in person with a litigious bent for whom interpreting the CPR is an enjoyable hobby? We who work with the system on a daily basis forget how frighteningly complex it is; and it’s also easy to forget that vulnerable frightened people do not always present meekly asking for help.

None of this is intended as any criticism of the judge or of the Claimant or its representatives in this case; indeed the Claimant went above and beyond its duty in offering to pay for the Defendants to obtain legal advice. And in fact in giving summary judgment for the Claimant the judge determined the construction of a lease rather than relying on the procedural errors made by the Defendants; their failures to comply with the CPR did not disadvantage them on this occasion.

And yet. The author is left with a nagging doubt as to whether all litigants are indeed created equal, even if self-evidently the system must treat them equally.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.

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