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Published 2 noviembre 2016
With last year's wide ranging increase in court fees contributing to the rising cost of litigation, it is not uncommon for your opponent to be acting as a litigant in person. Statistics presented for the period April – June 2016 by the Ministry of Justice show that in 56% of civil case defences both parties had legal representation. This leaves 44% where (at least) one party is not legally represented.
The recently published judgment of Jones v Longley and others  EWHC 1309 (Ch) serves as a reminder that there are no special rules which apply to litigants in person. In this case, the Claimant applied and, successfully obtained, an order to strike out the First Defendant's (who was a litigant in person) counterclaim.
The First Defendant initially filed two documents at court, one marked as a counterclaim which was 17 pages long and the other which was 80 pages in length. Both referred to other documents filed by the First Defendant in an earlier stage of the proceedings (which collectively ran to around 2,000 pages). Based on these documents, the Court held it was not possible to get a clear or precise understanding of the claims which the First Defendant was seeking to make and ordered the First Defendant to file and serve a brief statement of case summarising his counterclaim.
In response the First Defendant filed a statement case which was 23 pages long and exhibited 32 further pages. Amongst other matters, Master Matthews commented on how the allegations had been set out in the document "There are generalised allegations (some of the utmost gravity) without particulars. There is a general pleading of "evidence" to support the generalised allegations. There is much material that is simply irrelevant. And there is a general lack of coherence…"
Master Matthews struck out the First Defendant's counterclaim. He placed significance on the fact that it was not the original counterclaim made by First Defendant. "Instead, it is the revised version produced by First Defendant after comments by the Court and specific criticisms by the Claimant. The First Defendant knew what was wrong with the statement of case he had produced. He had a second chance, either to take professional advice, or at least to consider the specific rules to which his attention was expressly drawn by the order of the Court, and to produce a compliant statement of case".
Master Matthews also commented that the litigation had consumed an enormous amount of court time. He gave consideration to other litigants with disputes within the system and concluded that, given the court's limited resources, there was a point where litigants in a case "had as much of the resources as is proportionate".
He stressed that that there is only one set of rules, which applies to everyone, legally represented or not. The courts cannot and do not modify the rules for those who are not represented. Elliott v Stobart Group  EWCA Civ 449, .
Parties to a claim are required to help further the overriding objective which includes ensuring that parties are on an equal footing. This may be in the form of offering some practical assistance to a litigant in person which may help in progressing litigation e.g. providing links to relevant pre-action protocols or a court procedural guide. Further, the Law Society has published guidelines on practical advice for lawyers who face litigants in person which includes the relevant SRA provisions in relation to dealing with third parties. However, primarily, a solicitor's duty remains to his client and the court.
Therefore, if you are faced with a litigant in person who continually fails to comply with rules applicable to the proceedings, you should not hesitate to take action to protect your client's interests. There are no special rules which apply to litigants in person.
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