Reforming the Justice System – Litigant in Person
The government has a £1bn court reform programme which aims to reform and modernise the justice system. The idea is to make access to justice for modern users easier through online systems and to reduce the need for actual court buildings. Since 2011, over 200 courts have been closed with many of them having been sold. The money that has been raised from the sale of court buildings is being put back into the modernatisation programme to develop online services as a way of resolving disputes.
Lord Briggs set out his vision for the civil courts in his 2016 report, he suggested claims worth up to £25,000 should be solved in an online court. A first step in giving effect to this vision saw a pilot scheme launch on 6 April 2018, this is for unrepresented person(s) also referred to as a Litigants in Person (LiP). LiPs include individuals and businesses; they can now issue small claims up to £10,000 under the pilot scheme. However, money claims up to £100,000 can still be issued online by either LiPs or Solicitors using the current Money Claims Online (MCOL) website. This site has been around since 2003 and it is fair to say that technology has not proved an effective substitute for expert legal advice and representation.
Taking the right steps to start proceedings as well as remaining compliant with court rules throughout the case is critical. Even with the government’s initiatives to develop and provide technology based solutions, recent court cases are worth noting which highlight that concessions will not be given for failing to comply with the court rules even for LiPs.
Earlier this year the Supreme Court rejected a claim from a LiP to be given special consideration for finding his way through the civil procedure rules. In the case of Barton v Wright Hassall it was decided that the unrepresented Claimant, Mark Barton, should have checked whether he could email a claim form to the Defendant and that without such permission his claim was invalid.
The decision in this case strongly suggests that in the normal course of events there will be no special treatment for unrepresented persons, therefore the rules as they stand will be applied equally to all parties involved in litigation.
The judge, Lord Sumption, said lack of representation would not justify applying a lower standard of compliance with rules or orders of the court. He went on to say ‘the rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent…. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.’
The case of EDF Energy Customers Ltd v Re-Energized Ltd , concerned an unrepresented Defendant company, Re-Energized, who brought an appeal in the High Court. The court ruled that the Defendant could not be given any special treatment as the rules were not hard to find or particularly difficult to understand.
In an employment related claim, Green v Mears Ltd saw an appeal that was brought in the Court of Appeal against a decision of the Employment Appeal Tribunal (EAT). The EAT had refused Mr Green an extension of time to file his appeal. By the time his appeal was lodged correctly it was 73 days out of time and he argued that he was ‘computer illiterate’. The Court of Appeal showed no leniency for the failure to lodge his employment appeal in time and Mr Green’s was dismissed.
It is worth noting however that where legal professionals such as solicitors and barristers are involved in a case where there is a LiP, it is incumbent on those legal professionals to provide some assistance and prompts to a LiP as a failure to do so could put us in breach of duties owed to the court. Sometimes our client is not best amused but our duty to the court takes precedence.
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