Sticking to its guns – The High Court continues to apply a ‘not-so-special’ status to litigants in person

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21/03/2018

Last month Rachel Elgar wrote about the Supreme Court’s decision in Barton v Wright Hassall LLP [1] which confirmed that a party’s failure to comply with the courts’ rules will not be mitigated solely by virtue of them being a litigant in person (LiP).

Already, the High Court has applied this judgment in the case of Reynard v Fox [2], refusing to give weight to the argument that “it would be unjust if [the claimant’s] claim were to be struck out because he did not bring it under [section 304 of the Insolvency Act 1986], because he is a litigant in person and ‘didn’t have a detailed knowledge of insolvency regulations’.”

This case dealt with whether or not to strike out a bankrupt’s claim against his trustee in bankruptcy under rule 3.4 (2) (a) of the Civil Procedure Rules (CPR). Reference was made to the Barton decision and the finding that a person representing him or herself was not in itself a reason to accept breaches of procedural rules. That was the case unless it could be justified by virtue of the rule being categorised as hard to find, difficult to understand, or ambiguous.

Here, the High Court held that section 304 of the Insolvency Act does not fall into any of the latter categories. It was further considered that the claimant had displayed, by its conduct in the proceedings so far, that he was an intelligent and articulate individual who had learned a great deal about insolvency law and civil litigation proceedings. The court went on to state that the claim was being struck out because, as formulated, it was not sustainable and was an inappropriate claim to be made based on the facts. The court stated that “You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person. Defendants also have rights, including the right not to be made liable for causes of action which do not lie against them”.

This decision provides further reassurance that the courts will not allow LiPs to ignore or misapply the rules, nor to rely on their lack of legal representation as an excuse. The courts will preserve the right of defendants to expect the protections and certainties afforded by the rules.

As ever, though, care must be taken to ensure that LiPs are treated fairly, in line with the overriding objective [3] of the CPR. For further practical advice and information, please see our earlier briefings: Litigants in person: CPR changes; Litigants in person: Essential new guidelines; and When is a vexatious litigant a good thing?

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[1] [2018] UKSC 12
[2] [2018] EWHC 443 (Ch)
[3] That is, that cases must be dealt with justly and at proportionate cost (CPR 1.1)

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