The Rise of the Litigant in Person

August 2014

The Rise of the Litigant in Person

Much has been spoken and written about the 2013 Jackson reforms, with the focus invariably being on funding and costs-related issues, but there are other consequences of the changes which have entered through the back door with much less fanfare.

One such matter is the inevitable rise of the litigant in person in this new dawn of civil litigation. There are several reasons for this; firstly, the extreme narrowing of eligibility for legal aid: fewer people than ever before now qualify for advice and/or representation. Then there is the removal of the ‘no win no fee’, or conditional fee arrangement, which will result in potential claimants having to shoulder the possibility of covering their legal costs should they fail in their claim. Added to these factors is the increase in the small claims limit to £10,000, with the result that legal costs would not be recoverable for a claim under this limit even when successful.

It is therefore an irresistible inference that Jackson intended, at least indirectly, to involve more litigants in person in the civil justice process. From the point of view of jurisprudence, it is right that justice be accessible to all, and that it be open and transparent in its operation. But are there practical reasons that make this less desirable?

A few days before the Jackson reforms took effect, the Court of Appeal gave judgment in a case that involved litigants in person: Wright –v- Michael Wright Supplies Ltd and another (2013). The first paragraphs set out a very clear view of the problems arising when the courts are used by litigants without representation:

“...the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person....[and] to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved....[it is] disproportionately time-consuming......I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”

The comments were delivered on a platform that was going to be noticed by virtue of the timing alone. Perhaps mention should be made of the venue in which the case was heard – the Court of Appeal is a trickier undertaking than, say, the County Court for any advocate, qualified or otherwise. So maybe they should be regarded in context to a certain extent. But the judgment goes on to say that “the appeal would certainly never have occurred if the litigants had been represented.” This may well be true, as a legal representative can more readily identify the ‘bottom line’ of the dispute, and will be looking at matters in a less subjective way.   

The other matter highlighted in the case is the potential willingness of litigants in person to embrace the mediation initiative. Litigation is, for most, a deeply personal undertaking, and the willingness of litigants to seek a compromise is likely to be a forlorn hope for those who are so entrenched in their pursuit. Often it may not be about the damages, or other remedy at stake – often it may be about the principle, or simply having a day in court. In such circumstances, it may not be an avenue down which many will tread willingly:

“..the case shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation. Both tracks are intended to meet the modern day demands of civil justice...mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues. [The trial judge] attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused. What, if anything, can be done about that?”

The question is perhaps rhetorical but it makes a reasonable point about the pitfalls of alternative dispute resolution. And if there are attached costs consequences, which are potentially perceived as threats by those steering through the dispute alone, will that help to give the initiative teeth? Doubtless time will tell, but it seems that in the short term, the litigants in person are going to take some persuading.