In two recent speeches by the Master of the Rolls, Lord Dyson has:
- Called for further simplification of the Civil Procedure Rules to reduce delays in the justice system
- Suggested that lawyers may require more training to get to grips with the new regime of costs management.
He has also commented on the increase in the number of cases that are being conducted by Litigants in Person and the impact that this is having on the justice system. Because of the cut backs in legal aid and the increase in the Small Claims Court limits, there are now more Litigants in Person than ever before. In June 2015, a report was published setting out guidelines on how the courts and other lawyers might deal with litigants in person.
All three topics are connected and this article is intended to draw the strands together and provide an overview of the current litigation landscape and how it may affect our clients who become involved in litigation.
Simplification of the civil procedure rules
The current Civil Procedure Rules comprise 87 rules of court procedure, covering some 2,500 pages. These set out the Rules that must be followed by both the Courts and those involved in litigation. They deal in particular detail with:
- the contents of and the formalities for issuing and serving proceedings;
- how proceedings should be conducted including to which of the three tracks (small claims, fast-track and multi-track) cases should be allocated;
- which documents must be disclosed;
- the form and content of witness statements;
- the position of expert witnesses and how trials will be conducted; and
- the specialist rules that deal with things such as injunctions; enforcement action; and appeals.
Having so much detail can be an advantage as it provides a structure that litigators can work to. However, it can also be daunting to Litigants in Person who do not appear on a regular basis before the courts. There have been two major attempts in the last 20 years to simplify the rules – but the task is enormous and like the hydra in Greek mythology it appears that every time a rule is cut or amended another one appears.
The second related topic concerns costs. While all judges have received training concerning the new costs regime, introduced in April 2013, many practitioners have not. Lord Dyson has suggested that more training for practitioners is required.
At Wright Hassall we have a specialist costs team. This provides advice and support to the firm on all aspects of costs and our commercial litigation department meets regularly to discuss points of interest concerning costs which may have arisen during our conduct of cases.
The issue of costs can often be a powerful weapon and negotiating tool in the conduct of cases. For example, knowing when to make an offer of settlement and how to word such an offer is a key weapon in the litigator’s armoury, for pitching the offer at the right level and at the right time can have serious and significant consequences for Clients and opponents.
We have taken a number of cases on costs to appeal. In one, (where we were instructed by a client in place of its former lawyers) we were able to avoid a possible costs order being made against our client for approximately £500,000 and turn this into a position where, on appeal, our client’s opponent was instead ordered to pay a similar figure in costs to our client. This reversal of fortunes was achieved by careful analysis of the offers that had been made at an earlier stage in proceedings, and well-argued submissions before the Court of Appeal.
Litigants in person
The increase in the number of Litigants in Person in Court proceedings as a result of government cut backs has been significant. The person acting for him or herself often presents a number of challenges. If they are taking or defending a case, they often have a high level of knowledge about its detail; they will often have researched and have an understanding of the Court Rules; and may have large amounts of time to formulate their position in bringing or defending claims.
The Court is obliged to afford procedural fairness to all parties and may allow a Litigant in Person a degree of latitude in complying with the rules.
The Court may put the obligation of preparing court bundles of documents on the represented party, rather than the Litigant in Person; and there may be more Case Management hearings than would normally be the case if a Litigant in Person is a party. Often a final hearing will take longer as the Court will want to ensure that the matter is dealt with fairly and the Litigant in Person has every opportunity to present his/her case.
All these matters can add to the costs, as may the involvement of a McKenzie friend (i.e. a lay person who, if the Court permits, can provide reasonable assistance to a Litigant in Person).
Take advice if opponent is a litigant in person
We will advise our clients on a case by case basis where their opponents are acting in person as different considerations will apply in such circumstances. Important decisions may have to be made either at the start or during the course of proceedings – as the fact that an opponent is in person could increase the overall cost or have an impact on the ability on the opponent to pay either the costs of proceedings or any damages that may be awarded, when the case comes to trail.
So, if you are faced with an opponent who is acting in person:
- Do not worry: speak to someone in the team who will advise you of how best to proceed.
- Be prepared for the case to take longer than you may expect – the Court result in the end may not be affected – but judges often give Litigants in Person longer to deal with procedural aspects of a claim as it moves forward.