Litigants in person

03 Dec 2012

Because of legal aid cut-backs the sight of unrepresented litigants in cases is at least anecdotally, though unsurprisingly, becoming all the more common.  Whilst it is hoped that due respect and fairness is shown towards such persons by represented opponents and judges alike it is as well to note the measure of indulgence that should be shown as indicated in the recent case of Tinkler & Anr v Elliott [2012] EWCA Civ 1289 where the Court of Appeal allowed an appeal against the setting aside of a judgment, holding that the unrepresented defendant had not acted promptly enough for the purposes of CPR part 39.3(5). Lord Justice Maurice Kay remarked:

“32. I accept that there may be facts and circumstances in relation to a litigant in personwhich may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him formonths does not entitle him to extra indulgence. Even if one factors in Mr Elliott’shealth problems, the evidence shows that between April and July 2010 he was active in this litigation. The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far. In my judgment, this is where Sharp J went wrong. She regarded this to be “a special case on its facts” but it could only be considered such if one goes too far in making allowances for a litigant in person. For these reasons, I do not consider that it was open to her to find the promptness requirement satisfied.”


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