That is obvious I hear you say, but how is that relevant here? Well, the rule equally applies to the legal sector. If you are going to court, use a litigation solicitor, don’t try and do it yourself. Recent cases are increasingly recognising the limited resource available in the court system and the substantial burden that litigants in person (an individual, company or organisation that represents their self in court, aka who is not represented in a court of England and Wales by a solicitor or barrister), can place upon that limited resource. Litigation is not a free-for-all. There are rules set down in the Civil Procedure Rules (“CPR”) and these rules have to be complied with. There has long been a conflict between the overriding objective in the CPR and a desire on the part of the courts to ensure that it has regard for a party who is unrepresented. The overriding objective is for courts to deal with cases justly and at proportionate cost. Fundamental to the overriding objective is that the court enforces compliance with rules, practice directions and orders as per CPR r1.1(2)(f). Compliance with the overriding objective has frequently come into conflict with r3.1A which states at (2) that ‘When the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented.’ In other words, how much slack should the courts grant a litigant in person? Recent case law has sought to clarify the extent of ‘slack’ the courts can extend. In Barton v Wright Hassall LLP UKSC12; 1 W.L.R. 1119 it was held that whilst a party’s lack of representation will often justify the making of allowances in setting case management decisions and in conducting hearings (as per CPR r3.1A), the lack of representation will not justify applying to litigants in person a lower standard of compliance with the rules or court orders. Therefore, whilst the court may allow a litigant in person a more generous time frame in which to comply with an ordered direction, it will not allow the argument that “…I am a litigant in person…” to be justification for allowing relief from sanction where a party has failed to comply with a direction or rule, particularly not where the court has allowed a more generous time frame for compliance. The moral of the story? If you are building a house, hire a builder and if you are going to court hire a litigator! If you are not legally qualified it is a false economy to try and litigate yourself. You could find yourself in a bit of a pickle. You have been warned.
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If you are building a house, use a good builder. If you are going to court, use a good litigator!
About the Author: Neil Kelley
Neil is a director at Griffin Law, and is also the head of Griffin Law's litigation and dispute resolution team. He has over twenty years’ experience in dispute resolution.