It is a common concern of commercial parties to litigation, which are legally represented, that where a litigant in person ("LiP") is on the other side, the Court may make allowances for the LiP failing to fully comply with the Court rules. Two recent cases should, however, provide some reassurance that the senior judiciary has recognised the potential injustice faced by represented parties and go some way towards creating a more level playing field.
In Barton v Wright Hassall LLP the Supreme Court decided the extent to which LiPs may be excused for failing to comply with the Civil Procedure Rules ("CPR"). Mr Barton sought relief from sanctions, having purported to serve his claim on the Defendant (a firm of solicitors) by email, without first seeking the Defendant's confirmation that they would accept service of the claim by such means. The Defendant's position was that the claim had not been effectively served – Mr Barton was by that time out of time to correct the mistake.
At first instance and in the Court of Appeal, the judges struck out the claim on these grounds. Mr Barton appealed to the Supreme Court, arguing that he should be given relief from sanctions and that the Court should retrospectively allow service of the claim by email.
The Court determined that service needed to comply with the CPR, and that there was no good reason to depart from the CPR by allowing service by email retrospectively. In addition to this issue, the Supreme Court considered the status of LiP's and whether they should be given greater allowances owing to their lack of legal representation. The answer was a decisive 'no'. In the leading judgment, Lord Sumption stated that the CPR does not distinguish between parties which are represented and LiPs, and that LiPs cannot benefit from any lower standard of compliance with the CPR, simply because they are unrepresented. A LiP should not be afforded greater advantage, since this would impose a corresponding disadvantage to the represented party.
Following the judgment in Barton, the High Court has recently applied a similar approach to another LiP in Reynard v Fox. In this case, the Mr Reynard, a LiP, sought to introduce a new claim, despite the application being brought too late under the Insolvency Act 1986. Mr Reynard argued that he failed to adhere to the relevant rules within the CPR as he did not have a detailed knowledge of the relevant regulations, being a LiP. The Judge rejected this argument and made the point that "Defendants also have rights" and that a LiP should be afforded no extra leniency simply because he or she is unrepresented. In a judgment which will be comforting to legally represented litigants, the Judge said 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."
Procedural point scoring in itself is not always of significant value but, where it forms part of a coherent strategy, represented parties should not be afraid to take a robust approach against LiPs who seek to excuse non-compliance with the CPR or court orders simply by virtue of their unrepresented status. Legally represented parties should be increasingly confident that the courts will take a sensible and balanced approach when weighing the rights of represented and unrepresented parties.