Supreme Court asked to consider status of Litigants in Person

Lamilad

Will be interesting to see the outcome of this.

LiP's are obviously at a massive disadvantage against legally represented claimants.

Fortunately some DJs are well aware of this and take an 'understanding' approach... But as we know, all too well, some do not and will expect full compliance from an unrepresented person.

https://www.lawgazette.co.uk/news/supreme-court-ruling-on-litigants-in-person-could-redraw-cpr/5063855.article

System

He has commented on this and McKenzie Friends before. Though with the latter it appears more towards the family courts.

LiP: https://www.supremecourt.uk/docs/speech-121120.pdf

McK: http://www.familylaw.co.uk/system/uploads/attachments/0000/8125/McKenzie_Friends_Practice_Guidance_July_2010.pdf

[Deleted User]

There is a distinction insofar as the family courts were never really designed for LiPs whereas that was exactly what small claims were intended for. Nevertheless interesting to see what comes of it.

The irony of all of this is that the case involves a LiP suing Wright Hassall (of all the firms) for professional negligence and WH refusing his efforts to serve by email.

One may venture a delightful case to refer to if email service is attempted without your permission....

System

From the comments section of that article

I rather suspect that the claimant in this case is one of the sorts who, hmmm how shall I put this delicately, is the sort of LiP / client who corresponds in bold type, of various hues and with lots of capital letters and we pray will chose our most unliked legal colleagues.

Loadsofchildren123

It's good case law on how professionally represented parties must strictly comply though.

My interest in this is (assuming he wins) what happens where you have professional PPCs who act in person so are technically LiPs - eg Millennium and CEL. Will they be classed as LiPs or as professional litigants who should comply more strictly with the rules?

This is a hard one. Some LiPs are more able to read and understand and comply with the rules than others. How do you distinguish between them? The CPR are lengthy, but they are written in fairly plain English and they are so detailed that there is a rule for everything, almost down to when you can breathe and how (not allowed on a non-business day).

Surely a small point such as whether service was effective by email could just be dealt with under the courts' general discretion/case management powers?


Oh the irony that it's Wright Hassall!

bargepole

Allowing filing of claims by email would be the start of a very slippery slope that the Courts should not go down.

Next, it will be Facebook messenger, Twitter, WhatsApp, SnapChat and all the other so-called social media platforms where people spout their unmitigated drivel.

You can just imagine the sort of Particulars of Claim that are likely to be sent via these methods;

"I borrowed my mate a monkey coz he was short on his rent like, and he ain't paid it back. He's being a right div and dissing me and stuff"

They should keep the CPRs exactly as written, and updated annually.

Loadsofchildren123

Interestingly, Gladstones witness statements always claim that slight deviations from the rules are within the “tolerances” of the overriding objective contained in Rule 1.1 and 1.2. They do so to hide behind their own breaches of the rules (eg their incoherent/incomplete PoC).

In fact rule 1.1(2) says this (my comments in red)
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable
(a) ensuring that the parties are on an equal footing; this of course would include both parties being expected to comply with the rules
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders. Well there we are then. The rule actually says parties must comply, not that there should be appropriate leeway and a degree of “tolerance”

1.2 simply says that the court must consider the overriding objective when exercising its powers or interpreting the rules (not in applying them).


Rule 3.3 contains an inherent case management power for the court to exercise powers/make orders of its own initiate - this of course would include a Claimant being given leave to serve by email, or an order that service by email was good service (eg where there was no issue over the email actually having been received).


I think there must be much more to this than meets the eye. If the only issue was service by email I would have thought he could simply have applied for an order that service had been effected. Or he could have re-served by post and got permission to do so out of time.

[Deleted User]

Current Court of Appeal judgment is here: http://www.bailii.org/ew/cases/EWCA/Civ/2016/177.html

This is a hard one. Some LiPs are more able to read and understand and comply with the rules than others. How do you distinguish between them?

This is why the rules probably won't change. There's a case for simplifying some of the wording in some of the sections, for sure, but the concept of having different rules for lawyers as compared to LiPs seems unlikely.

Allowing filing of claims by email would be the start of a very slippery slope that the Courts should not go down. Next, it will be Facebook messenger, Twitter, WhatsApp, SnapChat and all the other so-called social media platforms where people spout their unmitigated drivel.

There is good authority for cases served by solicitors by just about all of these measures under the provisions for service by alternate means and where the Court could be satisfied that it was necessary (for example there was no known address, but there was evidence that the defendant was checking his facebook).

It's good case law on how professionally represented parties must strictly comply though.

This is my point. Wright Hassall received the proceedings in good time and then relied on the strict wording of the CPR to argue (correctly) that the claim form had not been served correctly. In principle there was no prejudice at all as the documents had all come to their attention on time. It follows that Wright Hassall and professionally represented Claimants should be held to the same high standards when it comes to service of documents. Thus far, the Claimant has (correctly, in my view) lost at every stage, so it may be that there will be useful Supreme Court authority before too long.

bargepole

Johnersh wrote: »

...There is good authority for cases served by solicitors by just about all of these measures under the provisions for service by alternate means and where the Court could be satisfied that it was necessary (for example there was no known address, but there was evidence that the defendant was checking his facebook).

I don't quite get that. If a claim is served to a Facebook account, and the Defendant fails to respond in any way, the Claimant could in theory get a Default Judgment, but they wouldn't be able to enforce it without an address, so what's the point?

[Deleted User]

'Cause you might know where their assets are. Nothing like freezing bank accounts for Sxxts and giggles

Lamilad

https://www.lawgazette.co.uk/law/breaking-supreme-court-rules-against-treating-lip-as-a-special-case-/5064895.article

One has to wonder if the SC is in touch with reality and is even capable of seeing how the current system is not fit for purpose, especially considering how it is abused by corrupt, opportunist claimants using it as a cheap and aggressive form of debt collection.

Does the sheer number of set asides being heard every day not even give them the slightest indication of the need for reform?

I'm particularly concerned by this statement....

"The rules provide a framework within which to balance the interest of both sides.!"

How can there be "balance" when you have a professional team of solicitors against an 88 year old man - who's never so much as returned a library book late - who suddenly finds himself thrust into the complex mechanics of the legal system, with all its rules and directions, just because a draft of wind flipped his pay & display ticket over.