Business Law: Graham Mead on the pitfalls of DIY litigation

Graham Mead of Blocks Solicitors

Graham Mead of Blocks Solicitors - Credit: Archant

TWO recent cases illustrate the apparent problems that the proposed increase to the small claims limit will create for litigants.

Currently, with exceptions for personal injury and housing disrepair claims, the Small Claims Court limit is set at £5,000. In April 2013, this limit will increase to £10,000.

Litigants in the Small Claims Court cannot recover their solicitor’s costs from their opponent, unless they can show that the opponent acted unreasonably. As a result, many litigants represent themselves.

Such “litigants in person” face a steep learning curve and cases involving them are often an expensive and drawn out process, with court deadlines missed or court rules not abided by. The concern with the likely increase in small claims matters being conducted by litigants in person is that this will put increased pressure on the already stretched court service.

In Tinkler and Another v. Elliott (2012) a litigant in person did not attend at trial and produced a medical certificate of unfitness to attend at court. This did not impress the trial judge who went ahead with the trial in the litigant in person’s absence, and found against them.

The litigant in person appealed. In the Court of Appeal, Lord Justice Kay dismissed the appeal saying “an opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person”. He said, regarding the litigant in person, that a lack of understanding of procedures “does not entitle him to extra indulgence”.

In Fernandes v Kenny and Others (2012), the Court of Appeal concluded that as a litigant in person had not produced a witness statement, and the evidence that he relied upon was profoundly unsatisfactory, it was impossible for the Appeal Court to say that the original judge’s findings had been wrong.

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While these cases show that courts respect the right of an individual to be self-represented, it also shows they will succeed or fail on their understanding of the law. The court will not give the litigant in person advice or assistance to get their case in order. With the Small Claims Court increase set for April 2013, and a further increase suggested thereafter to £15,000, we may have a legal landscape with more litigants in person, a slower court process and little leeway being given.

The fear is that there are unlikely to be any winners, only losers. It may be more straightforward to demonstrate that a litigant in person has acted unreasonably and is therefore liable for the representing party’s costs. Litigants in person will not, seemingly, be given leeway just because they are self-represented.

: : Graham Mead is a partner at Blocks Solicitors.