Litigant in Person

There is no model profile of a “Litigant in Person”!

The English term commonly encompasses natural people and entities who have a desire to represent themselves in legal proceedings, including management of the proceeding and representation in court. The term is not only synonymous with court actions, litigant in person can be found in tribunals and mediations as well.

However, unrepresented parties may choose to appoint litigation teams at any stage in the process, including at the start and during proceedings.

Some litigant in persons will take legal advice up to the point of going to a court or tribunal, where they will represent themselves; others could have chosen to start or defend claims without having obtained any legal advice.

Having regard for the above, a litigant in person can be a director of a company, a person, a solicitor acting for themselves or their firm, an accountant, a trustee, etc (the list could be endless). One difference between litigants in person and legal representation is that your legal representation with have sworn an allegiance to the court. The allegiance might warrant consideration if and when a judge hears the case, however the courts generally decide matters on facts and logic.

If a litigant in person is very articulate but lacks legal knowledge or has a negative perception about legal professionals, the latter will have an impact upon the way he/she engages in the litigation. If this describes you, then you ought to control your feelings and stick to the issues in the action, as general sneer at the legal profession will not assist your case and could rile the judge as they are also in the legal profession and it is them who will render a judgement.

Opponents should not make general assumptions in respect to the merit of a litigant in persons case; based on the fact the litigant has not obtained legal representation.

Some litigants in persons are very court-literate and capable in navigating through the process.

Being a litigant in person does not render an outside view that you are impecunious, thrifty or lacking. Therefore, if faced with a litigant in person don’t start the action on the wrong footing and make false assumptions. They could shock you and have a good comprehension of the system and the issues which they raise or face.

The costs of a litigant in person are as a result of “The Litigants in Person (Costs and Expenses) Act 1975 (as amended) (the act)”. This act gives the litigant in person the right to recover money in respect of any work they have done, further, any and all just expenses and losses incurred by them in connection with or as a consequence of the proceedings.

The act does not apply in respect to some actions, however actions involving timeshare contracts are covered by the act. Costs are not applied or assessed in certain cases (as they do not apply). These are actions in the small claims whereby, only out-of-pocket disbursements are generally recoverable.

While neither the act nor the Civil Procedure Rules (CPR) defines what a litigant in person is, CPR 46.5(6) determines that a litigant in person can include:-

  • A company or other corporation
  • A barrister/a solicitor/advocate/ a solicitor’s employee
  • A manager of a body recognised under section 9 of the Administration of Justice Act 1985 (incorporated practices)

and

  • A person who for the purposes of the Legal Services Act 2007 is authorised to conduct litigation.

In brief, a person who acts on his own behalf for either all or part of the claim are likely to be a litigant in person, unless represented.

That said, representation may be for only part of the proceedings, as such the above does not preclude a litigant in person from recovering costs for the aspect of work he conducted while not represented.

(Agassi v Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507, [2006] 1 All ER 900 at para 25).

A litigant in person seeking to claim costs may present a claim calculated in one of two ways:

  • An hourly rate to reflect actual financial loss

or

  • Where unable or unwilling to establish actual loss, on a fixed hourly charge.

The first option will require substantiation from an accountant as to the hourly rate so as to establish the loss as well as the hours which have been deducted from the employees contracted times or works shift. There could be a mixture of the costs however if the litigant in person is unable to prove any amount, the fallback position is currently £18 per hour which was increased from £9.25 per hour on 1 October 2011.

In respect of either category, the maximum the litigant in person can recover for time is two-thirds of the amount that would have been allowed if legally represented. This generally accounts for and discounts profit costs. The rate applies to the litigant in person’s own time served and has not affect costs, expenses and disbursements.

In respect of financial loss, the litigant in person is required to establish by evidence that on the balance of probability the financial loss claimed is real.

Furthermore, the litigant in person must go on to show what that loss actually is. As Mr Justice Robert Walker commented in Mainwaring v Goldtech Investments Ltd [1997] 1 All ER 467, in comparison are detailed below in the two extremes. This said, we are sure there are a variety of “inbetweeners”.

A self-employed tradesman in a small but profitable business, who has more customers than he can cope with and can fill every working hour to advantage”.

A retired person in receipt of a pension who finds the conduct of litigation a more interesting pastime than darts or dominos”.

Between these two extremes, the court’s job becomes far more difficult. If the litigant in person can show that the work was undertaken during hours when he was available to earn, is that sufficient or must the litigant in person go further?

In Joseph v Boyd & Hutchinson [2003] EWHC 413

Mr Justice Patten considered that the Court should adopt a ‘broad brush’ approach and not enquire to any great extent whether the “Litigant in Person” would have been engaged on other business. If he was available during working hours, one can assume he was available to work. However, even if one adopts such an approach, the “Litigant in Person” must nevertheless go on to show that he would have been gainfully employed and, more importantly, how much he would have earned. It is the amount lost that gives rise to the claim for financial loss. In practice, it is often on this last limb that litigant in persons fail.

Where a loss is proven, the litigant in person may recover that loss, even if the loss is less than the flat rate of £18 per hour. Having this in mind, a litigant in person ought to do both calculations before sending it to the court so as to obtain the best and most favourable award.

If the litigant in person has not suffered a financial loss, or is unable to show a financial loss, the flat rate applies. The court will require a list of times and dates when you performed  work on the case and could reduce the amount of applied hours if it feels excessive. Some people describe the flat rate as low (when compared with the legal professions rates) however a ‘profit’ of £18 per hour is not unattractive and does give you uplift for the trouble you have taken.

If the litigant in person seeks costs, either of an interlocutory application or trial, the litigant in person should file and serve written evidence to show actual loss at least 24 hours prior to any hearing so that the court will have time to consider the costs.

What can be recovered?
A successful litigant in person who obtains an order for costs may recover

Costs for the same categories of:

    • Work done in leisure time
    • Compensation for lost income when they were required to work on the case.
    • Advice taken from a solicitor or barrister
    • Part representation/ administration costs in the proceedings
    • Expert advice
    • Court costs and disbursements
    • Secretarial costs
    • Photo copying
    • Postage
    • Telephone calls
    • Office costs
    • The costs of obtaining expert assistance in assessing the costs claimed. CPR 46.5(3).
    • Library memberships
    • And any other costs which has been incurred by the litigant in person which would not have been incurred if the matter was not being litigated.
    • Disbursements, which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf.

In respect of rule 46.5(3)(c) ‘expert assistance’ is defined in PD 46 para 3.1 as assistance from a barrister, solicitor, fellow of the Chartered Institute of Legal Executives, fellow of the Association of Cost Lawyers, or a Law Costs Draftsman who is a member of the Academy of Experts or the Expert Witness Institute.

When considering costs you are required to consider proportionally, therefore if you are holidaying in a far off region and you cannot cancel that holiday, instead of incurring a vast amount of costs getting from the resort to the airport, flying back to the UK and taxis to court etc and the return journey, it could be a lot cheaper to just instruct a local solicitor to attend court on your behalf.

If the costs are a lot less and you are of sound mind, you would not have broke from your holiday if the cheaper option was available. In this case the court will sanction your cost claim and pay what it believes is more reasonable costs which ought to have been incurred.

“Cost assessment” as in Law Society v Persaud (1990) Times, 10 May, QBD, the litigant in person, who lived in South Africa, would no longer be able to recover the costs of travel to London, as the notional solicitor would have been in London. The fact that the cost would have been recoverable had the litigant in person been treated as a witness is irrelevant.

The litigant in person must elect whether the claim is as a witness or as a notional solicitor. The litigant in person is not entitled to recover both (rule 46.5(5)).In Agassi the costs of employing a tax expert to undertake litigation work were not recoverable as a disbursement, since a legal representative would not have employed a third party to undertake such work.

The same could also be said of the costs of routine postage, telephone calls, stationery and copying. Such costs are treated as part of office overheads and not normally recoverable by a legal representative. However, in Mealing-McLeod v The Common Professional Examination Board [2000] EWHC 185 (QB), Mr Justice Buckley commented at (13):

                         “A solicitor’s charging rate includes or takes account of the fact that he has support staff, secretaries, messengers, and so forth. A litigant in person, for example, must himself post letters, take files                            to court and photocopy documents. “The time spent reasonably doing the work…” mentioned in CPR 48.6(4) permits a reasonable assessment of time spent by the litigant in person and should                                 reflect those matters.”

If the direct cost of postage, calls and copying cannot be recoverable, can the time spent undertaking such tasks be recoverable?

Mealing-McLeod refers to CPR 48.6(4) and “time reasonably spent”. However this definition no longer appears in either the rule or practice directions. Some say it may now be questionable whether time applied in conducting administration work can be recovered.

However, it could equally be argued that these expenses are reflected as part of the legal representative’s hourly rate, and are not reflected in litigant in person rates.

Can the litigant in person recover ‘additional’ time for research? This was considered briefly by Lord Justice Rimer in Grand v Gill [2011] EWCA Civ 902, at (14). In principle he agreed with Lord Justice Schiemann (R v Legal Services Commission, Exp Wulfsohn [2002] EWCA Civ 250) that a reasonable sum for time expended in research, in principle is recoverable.

Reasonable, necessary and proportionate are the key considerations when applying costs to an action, as not to do so will attract the wrath of the court and the courts red pen will be optimised

Trial costs
It is not permissible to recover ‘notional’ disbursements, such as solicitors/counsel’s fees where they are not instructed (Hart v Aga Khan Foundation (UK) [1984] 2 All ER 439). On a fast-track trial where the litigant in person can establish a financial loss, they are entitled to recover two-thirds of the amount that would have been allowed for the trial advocate.

It would appear that such amount is irrespective of the actual financial loss. Furthermore, while the trial costs are fixed, if an advocate would have been entitled to additional costs under rule 45.39, so then is the litigant in person.

If no loss can be shown, then the figure is an amount in respect of time reasonably spent. See rule 45.39(5).

Finally, in conclusion, the court needs to:

  1. Identify a rate, being either the actual loss or the prescribed rate of £18.00
  2. Assess the time spent ( with an element for additional time on research and consideration, etc);
  3. Assess the figure a hypothetical legal adviser of an appropriate grade would have charged for the same work;
  4. Allow either the litigant in person’s assessed claim in full, or, if necessary, discount the figure to two-thirds from the amount that would have been charged by the legal representative.
  5. Assess the disbursements.

 


Last modified: August 24, 2015