The squeeze on litigants in person continues

In a further blow to litigants in person, the High Court has confirmed that there are no special rules for litigants in person.


The claimant, a former ski tour operator who had been adjudicated bankrupt, issued a claim against the defendant, an insolvency practitioner, who was his former trustee in bankruptcy, for damages for breach of contract and negligence in relation to the handling of his bankruptcy proceedings. 

However, Mr Reynard (a litigant in person) ought to have applied for leave of the court to bring his claim under s304 of the Insolvency Act 1986 but did not do so. The defendant issued an application for an order to strike out the claim on various  grounds, including that the claimant had failed to comply with the procedural requirement to bring the claim under s304 and that it disclosed no reasonable grounds for bringing the claim.

The claimant sought retrospective permission to bring his claim, attempting to argue that it would be unjust if his claim were to be struck out because he did not bring it under s304, because he is was a LIP who “didn’t have a detailed knowledge of insolvency regulations”.

As in the recent Supreme Court decision in Barton v Wright Hassell, it was again found that the fact that a litigant was acting in person was not in itself a reason to disapply procedural rules, or to excuse non-compliance, save in exceptional circumstances.

In HHJ Matthews’ judgment, the requirements s304 did not fall into any of the exceptional categories identified by the Supreme Court (ie the rules were not hard to find, difficult to understand, or ambiguous) and no injustice arose merely from the fact that the claimant was an LIP. The late attempt to comply with regulations was not enough, and HHJ Matthews insisted that the claimant could be offered no indulgence. It seems that Mr Reynard’s case was not helped by the fact that he was considered an “intelligent and articulate litigant”, with apparent knowledge of insolvency law in particular and civil procedure in general. 

Even if being unrepresented were an excuse, HHJ Matthews explained that the court was bound to decide if a claim is either unsustainable or unfair. “You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person.” Here, the claimant’s claim would have been struck out anyway, regardless of the claimant being an LIP, because the claim as formulated was not sustainable. 

Again, the court alluded to the fact that case management directions may be different. It is clearly compliance with the rules and orders that is of more concern to the courts.

Judgment - http://www.bailii.org/ew/cases/EWHC/Ch/2018/443.html

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Sean Chaffe

Costs Lawyer & Senior Legal Costs Draftsman

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