Litigants in Person
Rodney Hylton-Potts writes;
The Court of Appeal have ruled the Civil Procedure Rules should be interpreted rigorously, and the mere fact that an individual is unrepresented in the proceedings will not mean that they will attract any special treatment by the courts.
In Tinkler and Another v Elliott, the unrepresented party was defending a claim for damages and an injunction against him by his former employers. The end of the business relationship between the parties had been acrimonious with Mr Elliott making various accusations about their working practices. The disputes had been initially compromised by a Tomlin Order which prevented Mr Elliott from repeating his allegations.
However, Mr Elliott made further accusations and a further claim was made against him. This came on for trial on 15 March 2010. Mr Elliott did not attend the trial. Instead, he submitted a medical certificate of unfitness to attend the court but this failed to impress the Judge who proceeded to grant a permanent injunction against him. An appeal against this decision came before the Court of Appeal.
The appeal court said that the issue was ‘promptness’. The court had no discretion to set aside a decision taken in a party’s absence until the applicant has satisfied the three positive requirements of the rule. The first of these required that ‘he must show that “he has acted with all reasonable celerity in the circumstances
Mr Elliott had relied on ‘his ignorance as a litigant in person of the availability of an application to set aside’.
The Court of Appeal said that while ‘there may be facts and circumstances in relation to a litigant in person that may go to an assessment of promptness… they will only operate close to the margins’. They added that ‘an opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person’. Lack of understanding of procedures ‘does not entitle him to extra indulgence’
These may appear to be strong words which swim against a tide running strongly in favour of the court doing all in its power to ensure that a self-representing party has every chance to fully deploy their case and have it dealt with on its merits. But support for this proposition comes from a differently constituted appeal court in the decision handed down on 23 October 2012 in Fernandes v Kenny & Others. In this case, an unrepresented landlord applied to set aside a judgment for damages in respect of a deposit which had not been protected in an authorised deposit scheme, entered against him at a small claim hearing which he failed to attend. He failed in his application before a district judge and on a first appeal before the circuit judge.
The Court of Appeal found, however, that the lower courts had been right to conclude that the landlord had had no good reason for failing to attend the small claim hearing.
The court had to approach the ‘issue in the round, taking into account the merits of a defence in order to moderate the rejection of an application to set aside that might give rise to injustice or infringe European Convention rights’. It concluded that as there was such a degree of conflict in the defence filed by the self-representing party, and as he had not produced any witness statement, and the evidence relied upon by him was profoundly unsatisfactory, it was impossible to say that the circuit judge had been wrong.
Little allowance was offered the applicant for the fact that he was self-representing
In fact, what these decisions emphasise is that, while article 6 rights of a self-representing party must be respected and a court must be vigilant to ensure that the party understands the process, the litigant will still stand or fall on the quality of his own understanding of the law and the conduct of his case. Whatever comfort this might offer to the opponent of the self-representing party the stance is in fact not surprising. It is merely a reaffirmation of the fact that the judge should not and will not ‘enter the arena’ to give one party advice or assistance to get his case in order.