Litigants in person are not entitled to special privileges

Family Law|Industry News|November 7th 2018

In these post-legal aid days we are of course seeing far more litigants representing themselves in the family courts. Whilst the courts are not unsympathetic to the difficulties faced by litigants in person (‘LiPs’), a recent Court of Appeal case confirms that they are still subject to the rules and are not entitled to special privileges.

The case actually concerned a personal injury claim rather than a family matter, but the point of procedure involved applies equally to family cases. It revolved around a “without prejudice” offer of settlement made by the defendant to the claim.

A “without prejudice” offer is a settlement offer that is not intended to be seen by the court, as against an “open” offer, which can be seen by the court. The idea is that the maker of the offer cannot be held to it by the court. Accordingly, if the recipient of the offer thinks they might get less than the offer, they can’t show it to the court and expect the court to award them what was in the offer. Without prejudice offers are quite often made within financial remedy proceedings on divorce. For more details of how they work, and why they are made, see this post that I wrote here back in 2014.

In the case the claimant sought damages in the region of £225,000/235,000 for injuries he suffered in a road traffic accident in March 2011. The defendant obtained video surveillance footage of the claimant which, he alleged, showed that the claimant exaggerated the injuries he suffered as a result of the accident.

(As an aside, this reminds me very much of a High Court trial I sat in on as an articled clerk (i.e. trainee solicitor) many years ago. My firm was acting in a personal injury claim for a man who, throughout the trial, sat at the back of the court in a virtual vegetative state, apparently caused by the injuries he had suffered at the hands of the defendant. Unfortunately, the defendant produced a recent video of our client marching down the road to the shops, chatting to friends and generally looking as fit as a fiddle. Needless to say, his claim collapsed.)

Anyway, back to the present case, the defendant alleged fraud against the claimant, on the basis of the video evidence.

In February 2016, about three weeks before the trial of the claim, the defendant made an offer of settlement in in the sum of £10,000, in a letter to the claimant headed “without prejudice save as to costs” (in other words, the offer could not be shown to the court at the trial, unless the claimant failed to beat it, in which case the defendant could show the offer to the court, and ask the court to order the claimant to pay his costs from the date of the offer, on the basis that those costs would not have been incurred had the offer been accepted).

In the course of the trial, and despite being warned not to, the claimant revealed the existence of the without prejudice offer. He did so in order to counter the allegation of fraud, questioning why the defendant would offer him money if he thought it was a fraudulent claim.

The trial had to be stopped. The judge withdrew from the case, and ordered that unless the claimant made an interim payment of £10,000 within four months on account of the defendant’s costs thrown away, the claim would be struck out.

The claimant appealed against the order for him to make an interim payment, to the Court of Appeal. He claimed that as a LiP he did not know the meaning of “without prejudice”.

The Court of Appeal dismissed the appeal. Giving the leading judgment Lord Justice Irwin said:

“The increase in the numbers of litigants in person has been notable in recent years, as the availability of legal aid has so markedly declined.  This makes the transaction of business in the courts ever more difficult … The judges will always wish to assist litigants in person … But it is inevitable that problems will arise, nevertheless.”

He went on:

“While litigants in person will always attract the assistance of the court, they are not and cannot be a privileged class, relieved of their obligations under the [Rules]. Judges will show common sense and often flexibility, but in the end must enforce the Rules, and have a proper eye to the legitimate interests of the other parties to litigation, including as to costs.”

Here, he said that it was entirely proper to order the claimant to make an interim payment of costs before permitting him to continue to pursue his claim, and therefore the appeal was dismissed.

An interesting case, that serves both as a warning to LiPs, and an assurance to those facing a LiP on the other side, that the LiP will not receive favourable treatment when it comes to complying with the rules.

You can read the full report of the case here.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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