Biting on the LIP: a clear message bad behaviour will not be tolerated

Biting on the LIP: a clear message bad behaviour will not be tolerated

Published:

Author: Nick Shepherd

Applies to: England and Wales

Is the tide turning away from leniency being given to litigants in person (LIPs)?

A LIP is an individual conducting litigation on their own behalf. Following the recession, legal aid cut backs and poor economic conditions have led to an increasing number of LIPs being seen in the courts as people struggle to pay for legal representation. Given the complexity of the court system and its rules, LIPs can be at a disadvantage compared to represented parties. However, in the early stages of the credit crunch it seemed to some practitioners that judges would go beyond what was required to address this imbalance, resulting in increased costs and delays caused by last minute hearing adjournments; extensions of time for directions being followed and explanations of the law having to be given along the way. Indeed, some LIPs appeared to be 'playing the system' to their own advantage. Examples cases are:

Kinsley v Commissioner of Police for the Metropolis (2010)

A LIP (with a law degree) successfully appealed against an order striking out the claim. Notwithstanding that the claimant had been 'lamentably lax' in complying with court rules, he was a LIP in a claim which raised serious issues to be tried and it was possible that he had misunderstood the judge's comments at an earlier hearing to mean that the operation of the relevant order had been suspended.

WXY v Gewanter (2012)

In allowing an extension of time for payment of costs orders, the judge made 'substantial allowance for the fact that 'the defendant had in the main to conduct his defence of this litigation on his own and had intermittently been unwell which must have made it very difficult for him to earn an income'.

However, aided by the introduction of the 'Jackson reforms' (changes to the civil procedure rules following a report by Jackson LJ) on 1 April 2013 we are now seeing cases being reported where poor conduct and lack of respect for, or knowledge of, the rules is no longer being condoned.

Hobson v West London Law Solicitors (2013)

The LIP's negligence claim was struck out for multiple failures to comply with rules, practice directions and orders. The judge held that there was no good or adequate reason for the claimant's defaults and the claimant's conduct had fallen far short of the strict compliance required by the Jackson reforms. The failures had serious consequences for the litigation, impacting on the defendants, the court and other court users

Decker v Hopcraft (2015)

A LIP applied to adjourn a hearing, claiming to be unable to attend on medical grounds. The court stated that, faced with an application to adjourn on medical grounds made for the first time by a LIP, the court should be hesitant to refuse the application. However it will not be pressurised into adjourning in such circumstances. Here the judge rejected the LIP's evidence that he could not deal with the proceedings mentally for reasons including that he was producing detailed and complex correspondence on matters in issue.

Chadwick (Trustee in Bankruptcy of Anthony Burling) v Burling (2015)

Appeals were considered against a refusal to grant a LIP relief from sanctions for failure to comply with an unless order for the service of evidence. The judge said that, generally, the fact that a party is a LIP will not be a reason for disapplication of the rules. He saw 'very little weight' in the fact that 'at the last moment', well after the time for compliance, the LIP sought legal advice. The orders she failed to comply with were not difficult to understand, and there was no explanation why she had failed to adduce the evidence before. The fact that an individual is a LIP may be a relevant factor in some cases but 'only at the margins'.

Veluppillai v Velippillai (2015)

A judge took the unusual step of waiving a couple's rights to privacy in order to expose the husband's ''abysmal'' litigation conduct in financial remedy proceedings and highlight the scale of problems the court faces from ''unrepresented and malevolent litigants'.

The case concerned a wife's claim for ancillary relief and involved over 30 hearings, including 4 appeals by the husband. The judge said the husband 'had been repeatedly warned.about his unpleasant menacing conduct in court. On One occasion he assaulted the wife's counsel and the wife in court for which is was convicted of assault. He skipped his sentencing hearing and fled abroad from where he has bombarded the court with abusive emails', claiming he was fatally ill. In one of those emails he said 'You must all be executed in a gas chamber'. The judged published his judgment in full without anonymisation finding it was in the public interest to expose the husband's conduct. He also ordered the husband to pay all of the wife's costs and made a civil restraint order him.