Litigant in Person
Is there now a level playing field between the Claimant Litigant in Person and the represented Defendant?
Claims brought by litigants in person (“LPs”) can be difficult to defend and Insurers can often be faced with Judges who appear to be more sympathetic to LPs than they are to represented Defendants. Often the view can be taken that such cases should be settled rather than fought.
However, in the light of a recent case in which Langleys acted, it would seem that the parties are potentially on a more equal footing then has previously appeared to be the case.
By way of background, LPs tend to be given some leeway in practice and procedure. Sometimes at interlocutory hearings Judges try and assist LPs by adopting a more inquisitorial and interventionist approach to Defendants, to ensure that appropriate questions are asked or documents produced. The concern is that an LP should receive a fair hearing and not be disadvantaged by a (possible) lack of experience. It also safeguards against the risk of complaints following the outcome of the case.
In some recent cases, Courts have taken a sympathetic approach towards LPs in relation to procedure and costs issues. The case of Rosenberg v Nazarov (2009) concerned an application by the LP for further time to comply with an Order for disclosure and an Unless Order which required compliance. The Judge concluded that the LP’s default was “not deliberate” and so allowed his application. The Judge felt that it would have been “impossible or virtually impossible” for the LP to comply with the Order. The LP spoke no English so interpretation of the documents was difficult. The disclosure issues were also complicated.
In another recent case, Kunaka v Barclays Bank Plc (2010) an LP accepted a Part 36 offer after the relevant period had expired. The issue was whether the LP should pay the Defendant’s costs after the 21 day expiry. The Defendant had sent a reminder to the LP three months after the 21 day expiry saying that the offer was still open. The LP then accepted the offer 7 days later. The Judge described this as an “exceptional case” and decided that it merited departing from the usual Part 36 costs rules; one cannot expect LPs to know that the ordinary rules of offer and acceptance do not apply to Part 36 offers. It was also the Judge’s view that “the fairness of the situation has to take into account that Mr Kunaka is a litigant in person”. The Court awarded the LP’s costs to be paid up to the date of the reminder sent by the Defendant so the LP got 3 months’ worth of costs that he would not have normally received.
Langleys’ recent experience has indicated that, even though some latitude was shown to an LP by the Court in the early stages, ultimately the substantive issues were scrutinised by the Court regardless of the issue of representation. As such, this case offers some encouragement to insurers.
The case was an Employer’s Liability claim. The LP claimed damages for personal injury arising out of an accident at work in a warehouse. He had been attempting to retrieve a box from a third level of racking. The ladder he used only reached the second level of racking, and the item he was trying to reach also had another box on top which made matters even more difficult. Consequently, he had to overstretch to reach the box, thereby suffering a wrenching injury to his right foot.
The LP argued that the ladder he used was inadequate and defective. In support, he pointed out that after the accident new equipment had been purchased for retrieving items at height. The trade union had not been consulted before the purchase of the ladder. No adequate Risk Assessment was in place. The second box should not have been placed on the first.
The Defendant’s case was that the cause of the accident was the LP’s failure to use the correct equipment when attempting to retrieve the box. At the time of the accident he had available to him taller ladders, that were designed to reach the third level of racking, and also forklift trucks. He had chosen to use the most convenient equipment, rather than the correct equipment. While it was admitted that at the time a Risk Assessment was not in place, this had not been causative. Furthermore, the LP was a trade union health and safety representative and an experienced worker and so he should have been sensitive to health and safety issues and the importance of using the correct equipment. The issue of consultation was not relevant.
Throughout the case, the procedural decisions seemed to go in favour of the LP. For example, the Defendant had to get an “unless” Order against the LP for the service of adequate Particulars of Claim. The Defendant was then given a tight deadline to file and serve an Amended Defence. As the case progressed, the LP sought to introduce new issues, whereas the Defendant sought to keep the case as tightly focused as possible.
No negotiations were feasible. The LP was determined to have his day in Court, regardless of the cost risks.
Accordingly, the case went to trial, the Defendant being obliged to prepare the Trial Bundles. The LP cross examined the Defendant’s witnesses.
The Judge found in favour of the Defendant on all the main arguments and concluded that the LP failed to show that his accident was caused by the Defendant’s negligence or breach of duty. The Judge felt that the LP took a deliberate short cut in not searching for alternative equipment. Therefore, the LP had been the author of his own misfortune and did not use common sense. The Defendant was entitled to its costs in full.
This case demonstrates that, even when faced with an LP, if the Defendant has a strong case on liability it may be worth fighting to trial. Defendants should play the long game, rather than be discouraged if preliminary points go against them.