With historic cuts to legal aid and the current cost of living crisis, it is not uncommon for a party to find itself litigating against somebody who has not instructed legal representatives or otherwise known as a Litigant in Person (“LiP”). A LiP is a party to Court proceedings who has no solicitor or other legal representative on the record as acting for them.
LiPs can instruct a barrister on a direct access basis to represent them at Court hearings, seek the ad hoc assistance of legal advisers or “McKenzie Friends” (unregulated individuals who can assist LiPs with Court proceedings), or do everything entirely by themselves. Some LiPs can be very sophisticated and may even be legally trained themselves.
This article sets out some important points to bear in mind if you are litigating against a LiP.
The starting point is that LiPs receive no special treatment. The Civil Procedure Rules apply just as much to somebody who may be represented. The Supreme Court in Barton v Wright Hassall LLP  UKSC 12 said: “It is reasonable to expect a litigant in person, who is about to take a significant step in the Court’s procedure, to find out what the rules are and to take steps to comply with them.”
However, some allowances are required for unrepresented parties, and the legal representatives of their opponents often find themselves in a delicate position. It is crucial for practitioners to conduct themselves accordingly but also for represented parties to understand their own lawyers’ duties.
A solicitor owes duties to their client, and it is not their job to give an opponent legal advice. That being said, a solicitor also has professional duties towards the Court and the administration of justice. It is part of the Solicitors Regulation Authority’s Code of Conduct that a solicitor must not take unfair advantage of any party. Of course, it is not taking unfair advantage to apply the law and rules of procedure in your client’s interests, but a solicitor facing a LiP will be expected to take care in their dealings with them.
For instance, a solicitor for a represented party may have to explain matters of procedure in simple terms (for example, flagging up that, since a document was served on a particular date, the LiP’s response is due on another), avoid jargon or explain any unavoidable legal terms, and point LiPs in the right direction to locate the applicable rules. Unrepresented opponents should be encouraged to seek independent legal advice, or signposted to other assistance forums (for instance the Citizens Advice Bureau). More time likely needs to be allowed for deadlines to be complied with than with represented parties for instance.
Represented parties should accordingly not be surprised to find their own solicitor being more helpful than they would have expected to an opponent. It is of course also in the interests of represented parties for a Court to see them behaving beyond the norms, particularly when there is an unrepresented opponent. Failure to observe proper conduct can have a negative impact on costs.
Points to note with LiPs
It is key to remember that your opponent does not have the benefit of professional assistance to present their evidence and arguments in support of their case. Dealing with LiPs can be an unpredictable process. Without legal advice, they might not always understand the points you are trying to make. This can lead to potentially vexatious and unmeritorious claims being issued which will have to be dealt with to avoid judgment in default. An application to strike out is often the quickest and cheapest way to dispose of these, albeit inevitably it will take up legal costs and internal resources.
LiPs who may be overconfident in their case can be harder to reach an agreement with as they may not have the benefit of professional advice and guidance to navigate their way to a reasonable outcome.
Having a LiP as an opponent will often increase a represented opponent’s costs. It will bear a higher burden of dealing with issues that would not otherwise fall to it. For example, an unrepresented claimant’s duties of producing bundles and case management documents will often fall to a represented defendant.
Generally speaking, LiPs may increase the costs of conducting proceedings because they do not have the benefit of professional guidance. It is not uncommon to receive long letters that are inflammatory but that unfortunately have to be read, advised upon and responded to.
Additionally, LiPs may not know how best to present their case at trial. For example, a cross-examining LiP could spend hours taking witnesses through their statements paragraph by paragraph asking them to confirm what is stated.
Hearings may also last longer because judges will spend more time explaining things in detail to LiPs. Judges might come across as making special allowances for LiPs but it is important that hearings are conducted fairly, as otherwise judgments can be appealed.
For all of these reasons, it should always be borne in mind that the costs of litigating against a LiP can be even higher and more unpredictable than the costs of legal proceedings generally.
In addition, any party considering proceedings should always make sure that their opponent, represented or not, would be able to satisfy any judgment and costs orders. The fact that a party is not represented may suggest that they are not able to instruct external legal representatives and in turn that could have consequences in terms of seeking to enforce or satisfy any judgment or costs orders. This means that a represented defendant can find itself having been forced to defend frustrating proceedings by a LiP who refused reasonable attempts to settle, only to be unable to enforce a costs order if successful.
On the other hand, an unrepresented party will not themselves be incurring significant legal costs that they can claim if they win. A LiP can recover reasonable disbursements and there are limits to what they can recover on an hourly rate basis.