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When is a vexatious litigant a good thing?

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07/05/2015

The issues

April 2013 saw the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO brought about large scale cuts to legal aid, causing huge, immediate and still-growing numbers of individuals to represent themselves in court where, previously, legally aided representation would have been available. To compound the issue, court fees on certain money claims have recently increased (in some cases up to six-fold). The concurrent squeeze on legal aid and increase in court fees means that, more than ever before, many individuals are representing themselves in court.

The challenges

From the point of view of banks and businesses which deal with individual consumers and which now more frequently find themselves embroiled in disputes with litigants in person, some of the key challenges include [1]:

  • The majority of litigants in person have difficulties understanding and dealing with court procedures and legal issues in their case.
  • Around half of litigants in person are personally vulnerable in some way, which makes negotiation of the legal and procedural requirements of self-representation more difficult.
    Problems created by litigants in person can include a refusal to engage with proceedings and, on occasion, aggressive and disruptive behaviour. (Litigants in person do not have the one-step ‘remove’ from a personally emotive case that a legal professional can provide).
    Some hearings are taking significantly longer, because lawyers and judges are taking time to explain rules and processes to litigants in person.
  • Those hearings that are taking less time are not being resolved quickly due to a lack of lawyers indulging in spoiling tactics and debating technicalities – rather these hearings (many of which are crucial case management conferences) are collapsing as litigants in person are overawed and unable to cope.
  • Litigants in person sometimes seek to rely on ‘bad’ research – increasingly using the internet and misunderstanding the law or trying to import US or other legal concepts into UK civil litigation.
  • Litigants in person can be unfamiliar with the concept of openness in disclosure and with the lawyer’s overriding duty to the court. This can lead to mistrust and litigation being unnecessarily combative and cumbersome.
  • Represented parties can feel disadvantaged and, to some extent, even unheard, when litigants in person are allowed to speak out of turn and interject in court proceedings, whereas their legal representative follows due process.

Top Tips

In the majority of cases, positive engagement is the best means of ensuring that justice can be achieved for all parties as quickly and as cost-effectively as possible. To that end, here are our top tips for dealing with lay litigants:

  • Remember that barristers and solicitors are under duties to help in the administration of justice overall.
  • Be aware that it will assist both parties if, from the outset, solicitors acting for the represented party engage with the litigant in person to explain relevant law and procedure in clear, plain English and in a wholly neutral manner.
  • Assist the court as much as possible. Bring extra copies of documents. Explain both parties’ legal case and bear in mind that legal authority and guidance may need to be provided, by the legal representatives, for both cases…
  • …but at the same time guard against the represented party having to pay additional costs of burdens falling on the legal representative when they should fall to the unrepresented side.
  • Adopt a non-adversarial approach. It may be that being open-minded and inquisitorial instead may flush-out, for the benefit of all concerned, the real issues in a case.

– A litigant in person may, underneath any inflated rhetoric, have some genuine and valid issues, which can be resolved before costs increase and parties’ positions become entrenched.
– An upfront inquisitorial approach may discover that an apology or other form of resolution may appease a litigant, as opposed to a financial payment or other relief available from the court.
– Of course, a litigant in person’s case may have no legal merit at all, in which case an inquisitorial approach might mean that the legal representatives would be forearmed to give the best chance of obtaining a strike out or other suitable conclusion.

  • Clients should trust their legal representatives’ judgment. Just because a fact or issue is not spoken out in court, or because a litigant in person’s interjection is not challenged, does not mean that the matter is not properly addressed by the lawyers in the proper and most persuasive manner elsewhere within the proceedings.
  • Call or e-mail the litigant in person a few days before any hearing to ensure that they understand and are complying with all practical arrangements and procedural requirements. This can avoided wasted time and costs for the client.
  • Inform barristers in advance if the case involves litigants in person and plan to attend court early as any pre-trial negotiations will take longer than with represented parties.
  • Avoid last minute correspondence and production of documents and do not assume that the lay person will have the same instant access to e-mail and other communications as would a professional.
  • Over-, rather than under-, estimate timings for hearings.
  • Finally, if you do face a vexatious litigant, consider this recent case…

A contrary case

In KL Communications Ltd v Wenfei Fu [1] an employer had issued a claim that one of its employees had dealt with its database improperly. The employee replied to a communication from the employer, informing it that correspondence should be sent to a particular address. The employer then used the given address for the service of proceedings. The employee failed to defend and so default judgment was obtained. The employee failed to set aside or appeal the judgment. When it came to execution of a costs order made against the employee, however, the employee argued that her defence had never been heard. The employee, a litigant in person, was given a chance. She was directed to serve evidence and a draft defence by a certain date, to show why she had a real prospect of defending. The employee did not comply. Rather, she went on to make multiple separate applications for various orders, such as that the employer should make certain disclosures; that the employer’s claim should be found to be libellous; that the employer’s claim should be found to be groundless; and so on. The employer applied for a civil restraint order and submitted that the employee had demonstrated a complete failure to engage properly with the litigation process. The court agreed and made some helpful observations:

  • In considering an application for a civil restraint order, the court must be satisfied that a party had persistently issued claims or made applications that were totally without merit.
  • A persistent course of conduct in this context means more than two such actions.
    If it was otherwise appropriate for a civil restraint order to be made, the fact that the subject was a litigant in person who did not understand the process or had got things wrong was entirely supportive of the making of such order, rather than it being something which the litigant in person could rely on to avoid it.
  • The fact that the subject of a civil restraint order application was a litigant in person did not justify a long history of non-compliance or further indulgence from the court.
  • Making a civil restraint order does not prejudice a subject’s rights. Rather, it forces a subject to make applications properly or not at all.
    ____________________

[1] Sources include experiences of Walker Morris’ solicitors; extracts from Lord Dyson’s comments to the House of Commons justice committee in December 2014 and key findings from ‘Litigants in person in private family law cases’; Ministry of Justice Analytical Series 2014, para 2.1.
[2] KL Communications Ltd v Wenfei Fu IPEC 22/04/2015 Warren, J.