Litigating with Litigants in person: Useful pointers on balancing duties
Nicola Twine is a specialist Personal Injury, Clinical Negligence, and Employment barrister with over 20 years’ experience. In the article below Nicola outlines useful pointers on balancing duties when litigating with Ligitants in person.
1. The growth in the number of litigants in person (LiPs) in the Employment Tribunal has been keenly apparent over the last 18 months, when dealing with cases remotely as a consequence of Covid19. [1] Whilst as lawyers we have had to familiarise ourselves with navigating electronic bundles and technology for remote hearings we have navigated through otherwise familiar territory.
2. The LiP has had the unfamiliar through which they have to find their way expanded. The day in court that many LiPs have hoped for has not arrived but has been a day, or days, behind a screen. It is likely this will continue, certainly for some types of hearings, going forward.
3. As a result, it is helpful to take some time and reflect on how as lawyers we should conduct cases when responding to claims against LiPs. It is important to understand the extent and limit of duties in the tribunal.
Legal duties
4. We have a duty to our clients, to the court, and the administration of justice, as set out in The Legal Services Act 2007 at s1(3) which provides that:
c) …authorised persons should act in the best interests of their client.
d) …persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independent in the interests of justice.
5. It is the duty to the court which is paramount. This is reflected in the regulatory framework for both sides of the profession. The Barristers Code of Conduct states clearly at gC1 that the duty to the court in the administration of justice overrides any other core duty[2], if and to the extent that the two are inconsistent. The Solicitors Regulation Authority Handbook contains provisions with similar effect.[3] Most significantly, chapter 11 provides that a solicitor must ensure that unfair advantage is not taken of an opposing party’s lack of knowledge where they are a LiP.
6. The duty may conceivably operate to potential disadvantage of a client, by obligating submission of authorities that are unhelpful to a case. At gC5 the BSB Handbook makes specific reference to this highlighting that it is particularly important when acting against LiPs to draw to the attention of the court any decision or provision which may be adverse to a client. This is to prevent unfair advantage and to ensure that both parties are on ‘an equal footing’ in accordance with the overriding objective.
Guidance for lawyers
7. In 2015 the Law Society, the Bar Council and CILEx jointly prepared guidelines for lawyers facing litigants in person in the courts.[4] Despite the age of the guidelines, and the fact they have not been updated to address remote hearings, they remain a good reference setting out good practice. It is recommended they are read in conjunction with the section on litigants in person within the Judicial College Equal Treatment Bench Book (ETBB) [5], which book all Judges must have regard to[6]. Chapter 1 of the 2021 edition concerns litigants in person and lay representatives.
8. Dealing with litigants in person can be at times frustrating and time-consuming. It is not uncommon to be presented with pleadings that appear as ramblings, where the claims have to be identified, and witness statements that deal with each and every event that occurred in the workplace for a period spanning years. Nor is it uncommon to have litigants in person who are angry and frustrated holding unrealistic expectations as they are so involved in their own case.
9. The ETBB reminds us that the flagged difficulties faced by LiPs generally stem from lack of knowledge and that LiPs tend to:
a. Be unfamiliar with the language and vocabulary of proceedings;
b. Have little knowledge of proceedings;
c. Be ill informed about ways of presenting evidence;
d. Be unskilled in advocacy;
e. Be unable to understand the relevance of the law and regulations in relation to their own problem;
f. Be unable to understand the concept of a cause of action;
g. Lack objectivity and emotional distance from their case.
10. We can add to the list that LiPs tend to be unfamiliar with, and nervous about, the use of technology for conducting proceedings. They are less likely to have the required technology than a lawyer and may not be able to comfortably operate it to conduct a hearing.
Practical pointers
Communication
11. Ensure both in and outside of the tribunal that you are clear in communications, as well as courteous and co-operative. Legal jargon is to be avoided where possible. Any written documents such as applications, skeleton arguments, and submissions should be comprehensive to the lay person and sent in advance of a hearing, again where possible.
12. If circumstances permit, notice should be given of any applications to minimise objection from a LiP and the potential need for adjournments to proceedings, which may result in adverse costs orders.
13. In any hearing, when interjecting it is helpful to explain why, recognising that the LiP may not know what has caused interruption to their submissions or questioning and the importance of their being able to follow and participate in proceedings.
Preparation
14. The tribunal will generally expect the represented party to take responsibility for preparation of bundles, provision of copies, and to draw up any orders. This should be anticipated. Time should generally be allowed for agreeing the content of trial bundles recognising the LiPs do not always understand what renders a document relevant, so start preparation early.
15. Where authorities are to be relied on those should be provided to the LiP ahead of a hearing. Furthermore, it is helpful if specific passages to be relied on are marked for the LiP, as the EAT requires on any appeal.[7]
Assistance
16. There should be preparedness to assist LiPs at hearings when identifying claims and issues.
17. In Cox v Adecco & Ors UKEAT/0339/19/AT, an appeal against an order striking out a claim made at a preliminary hearing, it was stressed that before considering strike out, or making a deposit order, reasonable steps should be taken to identify the claims, and issues in the claim. Moreover, with LiPs this involves more than requiring a preliminary hearing to say what the claims and issues are but requires reading the pleadings and core documents that set out the claimant’s case. Amongst a number of general propositions advanced it was stressed[8] that respondents, particularly if legal represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not take procedural advantage of LiPs, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner expected of a lawyer or the wrong label is applied.
18. It is to be recognised that the tribunal has a duty to make procedural allowances to a LiPs difficulties and vulnerabilities and to demonstrate sensitivity. This may dictate how proceedings are conducted.
Reflection
19. Sensitivity has to be demonstrated to a LiPs’ difficulties. Time should be taken in each case to determine what these might be and what practical steps might be taken, in the interests of the court and the client, to assist the smoother running of a hearing.
20. Practically, if it is believed that a LiP is vulnerable and that there needs in terms of participating in proceedings have not been recognised this should be brought to the attention of the tribunal.[9]
21. In April 2020 the Employment Tribunal issued presidential guidance on vulnerable parties and witnesses[10], which stresses the importance of active case management, adjustments for vulnerability, and addresses vulnerability in the context of capacity to litigate. Lawyers are advised to familiarise themselves with this guidance.
22. Guidance on the appropriate course of action where a representative forms a view an unrepresented claimant might lack capacity to conduct litigation was given in Jhuti v Royal Mail Group Ltd UKEAT/0061/17. Whilst both the presidential guidance and that in Jhuti leave many questions unanswered, such as how to investigate capacity where the evidence is not clear, both stress the importance of raising capacity early if it is a potential issue. This is despite there being no bar to a party without capacity conducting litigation in the Employment Tribunal, unlike in other jurisdictions.
23. Procedurally, regard has to be had to difficulties there may be with compliance. As was recognised in Cox, when dealing with LiPs requests for additional information should be as limited and clearly focussed as possible. Repeatedly asking for additional information and particularisation rarely assists as LiP to clarify the claim[11]. More often assistance is required.
Compliance
24. Lawyers must ensure that they comply with rules and practice directions and be aware that a failure to do so, when there is a LiP in particular, may lead to adverse consequences.
25. Where there has been non-compliance by with practice directions and court orders by a LiP the tribunal will be keen to ascertain why. In reality some degree of assistance and leniency is often given due to the difficulties faced by LiP but in many cases there comes a time when a court will impose a sanction, particularly where an infarction has implications for the litigation process and represented party.
Costs
26. Represented parties are advised to carefully consider whether to apply for costs against a LiP in any given case, even where there is finding of some unreasonable behaviour or consideration that a claim had limited or no prospects. The gravity and effect of any unreasonable conduct or failure, as well as means to pay are relevant factors for consideration.
27. Whilst the threshold tests are the same whether a party is represented or not the application of those tests is to take account as to whether a party is professionally represented or not.
28. The EAT in AQ Ltd v Holden [2012] IRLR 648[12] observed that a tribunal cannot and should not judge a LiP by the same standards as a professional representative. It was held that: whilst the law is the same, the application of that law and the courts exercise of discretion, must take into account whether a litigant is professionally represented; a tribunal cannot and should not judge a LiP by the standards of a professional representative as justice requires professional standards are not applied; and that even if the threshold tests are met the tribunal has discretion whether to make an order having regard to all the circumstances. This has since been followed with approval in Vaughan v London Borough of Lewisham UKEAT/0534/12/SM.
29. In Oni v Unison UKEAT/0370/14/LA the importance of considering means was stressed once there has been a finding of unreasonable conduct. The tribunal had there erred in assuming that once unreasonable conduct was established a costs order should follow. The means of a paying party are to be considered twice. Firstly, in considering whether to make an award of costs; secondly, if an award is to be made in deciding how much.
30. The unreasonable behaviour on the part of the LiP has likely to be significant to result in a costs order. This was the case in Liddington v 2gether NHS Foundation Trust UKEAT/0002/16. In that case three Employment Judges had told the claimant that her claims were not adequately particularised. In considering costs the Judge accepted that the claimant was a litigant in person and so (in accordance AQ Ltd v Holden) should not be held to the standards of a lawyer but her continued ability to provide particulars amounted to unreasonable conduct justifying costs against her. The Judge did consider whether there was vulnerability by reason of stress, anxiety or illness, that affected the failure to particularise and decided it was not.
Conclusion
31. An understanding of the party as well as the claim is the key to conducting a case against a LiP. This is to minimise the risk of any appeal, avoid unnecessary adjournments, assist the smooth running of the claim, and to ensure that competing duties are discharged.
Nicola Twine
Parklane Plowden
[1] The five yearly https://www.gov.uk/government/publications/survey-of-employment-tribunal-applications-2018 survey conducted in 2018 found 46% of Claimants used a lawyer for some or all of the proceedings whereas 77% of employers had representation. It is the number of unrepresented Claimants that is believed to have increased markedly.
[2]https://www.barstandardsboard.org.uk/for-barristers/compliance-with-your-obligations/the-core-duties.html
[3] Chapters 5 and 11.
[4] Accessible via https://www.lawsociety.org.uk/en/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers
[5] https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf
[6] This is regularly updated and its relevance and importance in Employment Tribunal proceedings has been recognised judicially.
[7] https://www.judiciary.uk/wp-content/uploads/2020/06/Practice-Direction-2018-19-09-19_.pdf
[8] Paragrpahs 28 to 31.
[9] As considered in Higgins v Home Office [2015] UKEAT/02961/14/LA and East of England Ambulance Service NHS Trust v Sanders [2015] ICR 293
[10] https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf
[11] Paragraph 32.
[12] In which the writer represented the employer.
