I recall that when I was practising litigants in person were a relative rarity, at least in family law matters. Yes, you did come across them, but in the vast majority of my cases the party on the other side was also represented.
All that has of course now changed. Four years after I gave up practising legal aid was abolished for most private law family matters. As a result, now more than a third of all family court cases feature unrepresented litigants on both sides. Huge numbers of litigants are having to find their way through the minefield of law and rules without any legal assistance.
With the litigation landscape so changed, the question arises: is it time to make the rules simpler for litigants in person?
The question came to mind in particular because of a case that was before the Supreme Court last week. The case concerned a negligence claim by a litigant in person against his former solicitors. Unfortunately for the litigant, the claim came unstuck at the first hurdle, due to his misunderstanding of the rules relating to service of claims. He served his claim form on the solicitors by email, apparently unaware that under the rules service by email is only allowed if the party who is to be served has previously indicated in writing that they are willing to accept service by email, and given details of their email address. The solicitors had not so indicated, and thus the claim was not properly served. Accordingly, the claim was subsequently ruled invalid.
The litigant challenged this, but a district judge ruled that he was not entitled to ‘special rules or indulgences’, and in March 2016 the Court of Appeal upheld that decision. The litigant, now with the assistance of lawyers, has taken the case to the Supreme Court, arguing that the rules are simply too complex for litigants in person to navigate – with no appropriate guidance available, compliance with the rules was impossible, and the law should make allowances.
The case actually prompts two questions. Firstly, should the law make special allowances for litigants in person? Secondly, if not, should the rules be made simpler so that litigants in person can more easily understand them?
As to the first question, I really don’t see how this could work. Obviously, rules should apply equally to all litigants, and it would be quite unfair to represented litigants if their unrepresented opponents were treated more leniently when it came to compliance with the rules. Having said that, I suspect that many judges do already do this to a degree, whether consciously or not, simply to enable cases to advance with reasonable speed.
In the end though we must remember that rules are there for a purpose, and if one party is exempt from complying with a rule then the other party is going to be at a serious disadvantage. For example, the service rule, which, incidentally, is similar to a rule applicable to family proceedings, is there to ensure that the other party knows to check their email for receipt of the claim (in case, for example, the email is wrongly classified as junk mail), and that the claimant sends the claim to the correct email address. Without the rule it is quite possible that the other party will not see the claim, and be unaware that it has been issued. With such a ‘clear’ rule, it is impossible to see how a litigant in person might be given special indulgence to allow for ‘unexpected’ service by email without the other party being disadvantaged.
As to the second question, I’m sure that it is always possible for the rules to be simplified, and for litigants to be given more assistance, for example through a web-based help system. In the end, though, there is surely a limit to how much simplification can be done. The rules deal with complex issues that sometimes just can’t be made any simpler. In fact, my own view of the service by email rule is that it is already pretty clear, with perhaps the only issue being that the rule is not all in one place: the litigant must look at both Part 6.3 of the Civil Procedure Rules, and also at Practice Direction 6A – it would surely be preferable if it were all in the same place.
There is speculation that if the Supreme Court rules in the litigant’s favour then the Civil Procedure Rules (and no doubt also the Family Procedure Rules, which cover family cases) will have to be redrawn for the benefit of litigants in person. In view of the changed litigation landscape, I suspect that that will be happening anyway. Encouragement from the Supreme Court will only make it happen more quickly than would otherwise have been the case.