Menu

Litigants in Person – Questions should clarify, not lead

Document, clipboard and pen Print publication

14/12/2018

The recent case of Global Corporate Ltd v Hale [1] has yet again demonstrated some of the difficulties that can be encountered by the courts and represented parties when dealing with litigants in person (LiPs).

We have written previously in some detail about the rising number of LiPs and the fact that case law confirms that, despite their lack of legal representation, LiPs should not be afforded special treatment during the litigation process [2].

In this most recent case, the dangers of a judge asking leading questions of a LiP were made clear when the Court of Appeal confirmed that, while the trial judge was entitled to ask parties to clarify answers they had given, it was not proper for the judge to begin a new line of questioning. The trial judge’s findings in this case had been based upon such a new line of questioning and all three appeal judges criticised the way in which the LiP was handled by the trial judge. Lady Justice Asplin observed (at paragraph 27) that:

Where a party is unrepresented, as a matter of fairness both to the unrepresented party and the other party or parties to the litigation, it may… be both appropriate and necessary to ask questions in order fully to understand the unrepresented party’s case as pleaded, their submissions and their evidence. In doing so, the judge should take care not to ask leading questions of the unrepresented party in his capacity as a witness…Such questioning should be approached with caution and limited to essential matters.

This case therefore offers additional reassurance to legal practitioners that LiPs are not to be treated as having any special status by virtue of their appearing without legal representation. Whilst judges may clarify the issues at hand, they should not stray from the case as pleaded and the evidence put before the court.

____________________

[1] [2018] EWCA Civ 2618
[2] See our earlier briefings: Litigants in person: CPR changes; Litigants in person: Essential new guidelines; Barton v Wright Hassall LLP: Litigants in person – a not-so-special status; and High Court continues to apply ‘not-so-special status.

Contacts