In this practical guide we examine a range of factors that you may wish to consider when deciding whether to bring or defend a claim as a litigant in person. We do so by answering the following questions:
- What is a litigant in person?
- How do I become a litigant in person?
- What are the advantages of being a litigant in person?
- What are the disadvantages of being a litigant in person?
- What does the court expect from me as a litigant in person?
- What costs can I recover as a successful litigant in person?
- What are the costs implications for me as an unsuccessful litigant in person?
- Is there any alternative to becoming a litigant in person?
As leading professional negligence solicitors we pursue claims for clients against a wide range of different professionals. Our significant experience means that not only are we understanding of, and conversant with, the extensive rules that govern civil litigation, but that we are also able to advise clients on the alternative ways in which they may be able to fund their claim.
However, it is not a legal requirement to instruct a solicitor (or a barrister) when pursuing or defending a legal claim and there is always the option of acting as a litigant in person.
What is a litigant in person?
A litigant in person is an individual, company or organisation which has chosen to pursue or defend a claim in court without representation from a solicitor or barrister. In Scotland, such individuals and entities are known as a ‘party litigant’.
Simply because you choose to represent yourself in court as a litigant in person does not mean that the opposing party is prohibited from appointing a solicitor and/or barrister. Therefore, taking this approach will often result in an ‘inequality of arms’.
The courts neither encourage nor discourage a claimant or defendant choosing to act as a litigant in person, but some guidance for litigants in person is provided by the Courts and Tribunals Judiciary.
Additional help and guidance is also provided by the charity Law for Life and can be found on its not-for-profit website Advice Now. The section for litigants in person, ‘Going to Court or Tribunal’, was funded by the Ministry of Justice with the aim of improving the experience of those facing the legal process alone, by improving access to information, advice and practical support.
How do I become a litigant in person?
You do not need to seek permission from the court or anyone else to be a litigant in person and to represent yourself in court.
If you are bringing a claim in the civil courts it is necessary only to provide your personal contact details on the Claim Form if you are choosing to represent yourself. Similarly, if you are choosing to represent yourself in defending a claim, you should complete the Acknowledgment of Service form, which is served with the Claim Form, with your personal contact details.
What are the advantages of being a litigant in person?
Bringing or defending a claim yourself and without a solicitor and/or barrister to represent you may have some potential advantages, such as:
- Your own time is free of charge and you will not have to spend money on solicitors’ and/or barristers’ fees in order to pursue or defend your claim;
- You will not have to spend time instructing a solicitor or barrister and explaining the background of the claim to them;
- You will not have to spend the time and potential cost of photocopying documents to provide to your solicitor or barrister;
- The court may offer you some flexibility for smaller and insignificant breaches of court rules; and
- As a successful litigant in person you may be able to claim costs from the losing party, which is discussed in more detail below.
What are the disadvantages of being a litigant in person?
Whilst the potential cost saving of acting as a litigant in person may seem attractive, it is important that anyone who chooses to represent themselves in bringing or defending a claim is aware of the significant disadvantages of doing so. These include:
- Litigation is invariable a stressful process for those involved and this is likely to be all the more acute without a solicitor to shield and support you;
- Without knowledge and experience of the litigation process, there is a greater risk that you will unwittingly prejudice your claim or defence at an early stage and in a manner that cannot later be remedied;
- Bringing or defending a claim is incredibly time consuming, even more so when you are unfamiliar with the court’s rules and processes and need to take time to understand what steps must be taken and by when. Whilst you may consider that you are saving time by bringing or defending a claim yourself, you may not appreciate the time it takes to undertake the different steps involved in court proceedings;
- The court expects anyone choosing to pursue or defend a claim themselves to be familiar with the relevant rules and statutes governing the litigation processes, particularly when such information is readily available online, and to comply with those rules and procedures. This is discussed in more detail below;
- Whilst you may feel very strongly about the merits of your claim or defence, a solicitor or barrister can provide legal knowledge, experience, insight and objectivity which both individually and collectively can have a material impact on the outcome of the litigation;
- Many claims, and particularly professional negligence claims, require an expert witness to be appointed to provide an independent opinion on certain liability and/or quantum issues arising in the claim. For example, this may be necessary to determine the value of a property, the level of lost profits for a business or the cause of delay to a construction project. A solicitor can identify a suitable expert, and also recognise those experts which may not be suitable;
- Whilst only a small proportion of claims reach trial, a trial can be extremely daunting if you are unfamiliar with the court and trial process. Whilst family courts may be more informal, civil court trials can be very formal, with the judge offering little or no assistance to a litigant in person, whether in the presentation of their case or the cross examination of witnesses and experts. For claimants in particular, the preparation for trial is very onerous and includes the production of the bundles of documents for each of the parties, the judge and for the use of the witnesses in court. Depending on the size, nature and value of the claim, this can amount to many thousands of documents. The courts will not vary the rules or allow a litigant in person additional time only because of their lack of legal representation. This was demonstrated in the case of Axnoller Events Ltd v Brake & Anor (2021), which highlighted that the courts would not take into account of a litigant in person’s impecuniosity or lack of representation when considering whether to vary an order relating the conduct of the trial.
What does the court expect from me as a litigant in person?
As explained above, although the courts neither encourage nor discourage litigants in person, the courts expect anyone choosing to pursue or defend a claim themselves to be familiar with the relevant rules and statutes governing the litigation processes, particularly when such information is readily available online, and to comply with those rules and procedures.
This was underlined in the case of Barton v Wright Hassall LLP (2018), when the Supreme Court made clear that being a litigant in person does not excuse compliance with court rules, particularly in cases where the failure to do so was prejudicial for the other party. In the more recent case of Shah Muhammed v Daily The News International & Ors (2023), the requirement for litigants in person to comply with court rules and have regard to the statutes governing limitation was also reinforced.
The court will not assist you as a litigant in person in bringing your claim or highlight for you the relevant areas of law to which you should have regard. The court will also not expect your opponent’s legal representative to do so either. A judge at trial will not assist you with presenting your case, with your cross examination of witnesses or otherwise guide you in making submissions.
There could also be significant adverse cost implications for you as a litigant in person if you pursue, whether knowingly or not, a claim or defence which has no basis in law.
What costs can I recover as a successful litigant in person?
If the claim has been allocated to the small claims track all parties, whether litigants in person or legally represented, generally bear their own costs unless the court is satisfied that the losing party behaved unreasonably. Usually, the successful party will only be awarded the fixed costs on the commencement of the claim for court fees, travelling expenses, loss of earnings and expert fees. The amounts recoverable are nominal in those circumstances.
For claims allocated to the fast or multi track, rule 46.5(4) of the Civil Procedure Rules states that the amount of costs allowed to a litigant in person depends on the litigant in person proving financial loss or, where financial loss cannot be proven, an amount for the time reasonably spent doing the work, but which cannot exceed more than two-thirds of the amount to which a solicitor would have been entitled. For those who cannot prove financial loss, the rate of £19 an hour is considered to be suitable compensation for time reasonably spent, as assessed by the judge.
However, in the recent case of Spencer and anor v Paul Jones Financial Services (2017), a Master in the Senior Courts Costs Office allowed a litigant in person to recover a rate of £150 per hour in a claim which settled for £220,000. The reason why the litigant in person was able to claim such a high rate was because he was able to evidence his financial loss very clearly, having adduced company accounts to show that his business had suffered a significant downturn in the period he was working on the case and which he could show was directly as a result of the work he had done. Whilst the hourly rate awarded to a litigant in this case was highly unusual, it does demonstrate that the court is prepared to compensate a litigant in person if there is clear evidence of the loss suffered.
From a practical perspective, in order to claim even the rate of £19 per hour, you must keep careful dated records of the time spent on the claim and the nature of the work undertaken on the dates recorded, in the same way as solicitors are required to record their time as evidence of the work done and time spent. Without that evidence the courts will have difficulty in making any costs award in your favour.
What are the cost implications for me as an unsuccessful litigant in person?
Where you are unsuccessful as a litigant in person in bringing or defending a claim, you are subject to the same rules as if you had legal representation. These generally provide that the losing party pays the winning party’s costs.
The court also has the power to award ‘indemnity costs’ (being a higher scale of costs) if it considers that a party has behaved unreasonably. A party cannot escape such a finding purely by reason of having acted as a litigant in person.
Similarly, there may be some instances where even though it is unusual for costs to be awarded at all, such as in small claims (as discussed above) or in the Employment Appeal Tribunal (EAT), the courts have nevertheless decided to order a litigant in person to pay the successful party’s costs because of unreasonable conduct justifying a costs award.
In the EAT case of Liddington v 2gether NHS Foundation Trust (2016), the tribunal concluded that whilst the standard of pleading expected of a lawyer did not apply to a litigant in person, the litigant in person should still be expected to articulate their complaint properly and with relevant dates. In that case Mr Liddington had been given several opportunities to provide the necessary information but had failed to do so. The EAT concluded this amounted to unreasonable conduct and ordered him to pay 2gether’s costs.
Is there any alternative to becoming a litigant in person?
In some instances, you may well make a conscious decision to act as a litigant in person, particularly if the matter is relatively straight-forward or similar in nature to a dispute in which you have previously been involved. However, for many litigants instructing a solicitor (and/or barrister) to represent them is simply not an affordable option and so the decision to act as a litigant in person is made by default.
However, before you decide to act as a litigant in person, either by design or default, you would be well advised to first explore each of the funding options potentially available to you. This is all the more important in relation to a professional negligence claim, where the issues are likely to be much more complicated than in many other forms of litigation.
The funding options that may be available to you are discussed in more detail in the Fund a Claim section of our website and in our related article: Professional Negligence No Win No Fee.
Further assistance
We act for clients nationwide, to resolve substantial claims against a wide range of professionals, including claims against solicitors, accountants, insurance brokers and surveyors.
If you are considering bringing a claim for professional negligence, and if you believe that the value of your claim is likely to exceed £100,000, we would be happy to discuss the matter with you.
Most of our clients fund their claims under a private retainer and almost all our instructions commence on this basis. However, in some cases and where requested, we may then be able to offer an alternative form of funding.
To arrange an initial consultation with us, and in the first instance, please complete our Contact Form or email us at mail@pnclegal.com.
