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Litigants in Person and the Courts

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  • Litigants in Person and the Courts

    Below is an extract from a recent case

    Sir Alan Ward:
    Introduction
    1. This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon that alleged procedural impropriety.
    2. What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.
    3. My second concern is that the case shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation. Both tracks are intended to meet the modern day demands of civil justice. The raison d'être (or do I simply mean excuse?) of the Ministry of Justice for withdrawing legal aid from swathes of litigation is that mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues. I heartily agree with the aspiration and there are many judgments of mine saying so. But the rationale remains a pious hope when parties are unwilling even to try mediation. Judge Thornton attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused. What, if anything, can be done about that? You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey v Milton Keynes General NMS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002, for which I am partly responsible, where at [9] in the judgment of the Court (Laws and Dyson LJJ and myself), Dyson LJ said:
      "It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court."
      Was this observation obiter? Some have argued that it was. Was it wrong for us to have been persuaded by the silky eloquence of the éminence grise for the ECHR, Lord Lester of Herne Hill QC, to place reliance on Deweer v Belgium (1980) 2 EHRR 439? See some extra-judicial observations of Sir Anthony Clarke, The Future of Civil Mediations, (2008) 74 Arbitration 4 which suggests that we were wrong. Does CPR 26.4(2)(b) allow the court of its own initiative at any time, not just at the time of allocation, to direct a stay for mediation to be attempted, with the warning of the costs consequences, which Halsey did spell out and which should be rigorously applied, for unreasonably refusing to agree to ADR? Is a stay really "an unacceptable obstruction" to the parties right of access to the court if they have to wait a while before being allowed across the court's threshold? Perhaps some bold judge will accede to an invitation to rule on these questions so that the court can have another look at Halsey in the light of the past 10 years of developments in this field.

      Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 (27 March 2013)
      http://www.bailii.org/ew/cases/EWCA/Civ/2013/234.html
    CAVEAT LECTOR

    This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb


    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.


    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick
    Tags: None

  • #2
    Re: Litigants in Person and the Courts

    Justice for all,seems the judiciary wants to protect the fees of barristers,why cant judges order mediation as for costly court case the Costs should be borne by both sides if mediation is refused

    Comment


    • #3
      Re: Litigants in Person and the Courts

      Being a self litigant, I cannot see how the threat of costs is in the interest of justice, because one party might not want mediation. What struck me is how a persons rights can be totally violated for long periods of time and then when they finally seem to be close to vindication, the offending party can then make an offer, tinged with threats of court costs, going against you. Then use the mediation route as yet another threat of costs going against you. Most people who have to take someone to court, wants vindication, yet no one ever tells them at the start of their journey ,how easy the other side can just settle, after wasting so much time. The way things are going, the courts are going to be full of self litigants who have no idea what they are doing, and it is not their fault.

      Comment


      • #4
        Re: Litigants in Person and the Courts

        Originally posted by smileyculture View Post
        The way things are going, the courts are going to be full of self litigants who have no idea what they are doing, and it is not their fault.
        Yes, but that's what the snollygosters of the present kakistocracy want.

        Comment


        • #5
          Re: Litigants in Person and the Courts

          Originally posted by CleverClogs View Post
          Yes, but that's what the snollygosters of the present kakistocracy want.
          Why?

          Comment


          • #6
            Re: Litigants in Person and the Courts

            Litigants In Person are easier to bully and/or to bamboozle.

            Comment


            • #7
              Re: Litigants in Person and the Courts

              To what end? Are you saying they want the judiciary to be judge and jury as the Dwp are?

              Comment


              • #8
                Re: Litigants in Person and the Courts

                No.

                It's just that, without appropriate legal assistance, claimants suing the plods or the state will be more likely to settle for a low sum.

                Comment


                • #9
                  Re: Litigants in Person and the Courts

                  Could just be an exercise in self-preservation - if LiP's are successful, it threatens the raison d'etre of the legal professionals.

                  Hence "A man who is his own lawyer has a fool for a client"
                  CAVEAT LECTOR

                  This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

                  You and I do not see things as they are. We see things as we are.
                  Cohen, Herb


                  There is danger when a man throws his tongue into high gear before he
                  gets his brain a-going.
                  Phelps, C. C.


                  "They couldn't hit an elephant at this distance!"
                  The last words of John Sedgwick

                  Comment


                  • #10
                    Re: Litigants in Person and the Courts

                    Another way to look at it, is the Court's have to aid the Lip's as appeals will be on the increase.

                    Comment

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