Catriona McCorry

Litigants in Person “not entitled to greater indulgence”

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We have previously discussed the issues and pitfalls facing the legal profession when dealing with a Litigant in Person (LiP) opponent i.e. someone who is unrepresented in legal proceedings. The following is an update on current case law and an interesting study presently underway at University of Ulster.

Barton v Wright Hassall LLP [2018] UKSC 12

In this recent House of Lords decision, the issue to be determined was whether the Court of Appeal had erred in upholding the judgment of the lower court that there was no good reason to validate service of proceedings under the Civil Procedure Rules, CPR 6.15. The Judges also considered whether the Court of Appeal’s reasoning breached the appellant’s ECHR rights under Article 6 and 13. The LiP had served proceedings by email only on the respondent’s solicitors, just prior to limitation expiring. 

The House of Lords by a majority of 3/2 held that no attempt had been made to serve the proceedings in accordance with the rules and furthermore, no attempt had been made to serve the claim form until the very end of its period of validity. It concluded that there was no merit in the claim that the outcome in the lower courts was incompatible with the LiP’s right to a fair trial under Article 6 as the relevant rules were sufficiently accessible, clear and served a legitimate purpose. For those reasons the Appeal was dismissed. 

Lord Sumpton stated in his judgment that the respondent’s solicitors were under no obligation to raise the issue with the LiP regarding invalid service in time to warn him to re-serve properly, or begin fresh proceedings, within the limitation period. There was no duty to give him advice of this kind. Indeed, in so doing, this could have impacted the solicitor’s duty to his client. Discussing how the Rules were there to balance the interests of both parties, Lord Sumpton pointed out that “balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent.”

ECHR Article 6 right to a fair trial

The issue of the LiP’s Article 6 rights is increasingly raised. The School of Law at Ulster University and the NI Human Rights Commission have commenced a study which aims to report on the experience of LiPs in civil and family cases in this jurisdiction, with particular attention on the human right to a fair trial. The study seeks to better understand the characteristics of the population of LiPs as they progress through the court process in Northern Ireland. It involves all major stakeholders i.e. LiPs, lawyers, court staff and the judiciary. The project will conclude in July 2018 and it will be interesting to read the conclusions and recommendations arising from this study. Watch this space for further updates later this year.

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