Alaw Owen - associate in Hill Dickinson’s Health Litigation Team (London) – discusses: Litigant In Person – Ensuring Fair Representation

There continues to be a number of people litigating without professional representation. Such individuals will almost always face a disadvantage as they usually do not know the law, or the Civil Procedure Rules (CPR).

This can pose a real issue for the courts which are required, under the CPR, to ensure ‘so far as is practicable’ that both parties are on an equal footing. In addition, proceedings must be compatible with the European Convention on Human Rights (ECHR) including Article 6 which outlines a person’s ‘Right to a Fair Trial’.

But how does this translate in practice in complex clinical negligence cases where the court is faced on the one hand with a Litigant in Person (LIP) and on the other, the defendant, usually supported by specialist solicitors, barristers, experts and medical witnesses?

In a recent clinical negligence case handled by Hill Dickinson, the claimant initially had the benefit of legal representation but her solicitors came off record eight weeks prior to trial and she proceeded as a LIP.

All parties attended for trial, however the judge was not prepared to allow the matter to proceed as he deemed there to be a real risk that there could be a breach of Article 6. He advised that the complexity of clinical negligence matters required specialist skills and particularly, a meticulous understanding of the case in order to ensure effective cross-examination. Could a LIP do this? He considered it unlikely.

Whilst it is well established that Article 6 does not necessarily envisage a right to representation, the judge quoted cases where it had been held that representation would be necessary to ensure access to justice in particular instances. This included where the complexity of the procedure meant that the absence of legal representation would cause an ‘obvious unfairness’ and an ‘imbalance’ between parties.

The trial was adjourned to allow the claimant an opportunity to obtain further legal representation.

In this context, it is difficult to see how a LIP could ever proceed in a clinical negligence trial. Whilst LIPs should undoubtedly be afforded a degree of lenience, we often see judges bending over backwards to accommodate them and usually at the expense of the represented defendant.

So, what can we do to try and avoid potential judicial favour towards LIPs and minimise the risk of expensive adjournments of trials and hearings? The main way of removing the court’s temptation to adjourn to allow LIPs further chances, is to ensure that we can demonstrate that a LIP has not been prejudiced by their lack of resources and that they have understood their obligations throughout.

Here are six practical ways in which this can be achieved:

• Advise LIPs early to obtain independent legal advice and even suggest sources, e.g. The Bar Pro Bono Unit.
• Take time to explain each step of the pre-action/litigation process without using legal jargon. The Pre-Action Protocol requires Defendants to send a copy of the Protocol to the LIP ‘at the earliest opportunity’: refer them to the relevant sections of this and similarly the CPR. Whilst time consuming, it will render it impossible for LIPs to rely on ignorance of the rules.
• Send copy orders in case the court fails to serve them, highlighting key dates.
• Take care when explaining difficult issues, such as the adverse consequence of a failure to comply with court orders, so that you do not give the impression that you are threatening them and using their lack of financial support to your advantage.
• Make full and detailed notes of any telephone conversations that take place immediately after the call in case this needs to be referred to in future. If communication with a LIP becomes difficult, encourage written correspondence.
• If a judge has familiarised him/herself with the issues at an early stage, ask that the case be reserved to that judge. It avoids having to start afresh at the next hearing and lessens the risk of adjournment.

It can sometimes be difficult to reconcile offering a LIP clemency, with acting in the defendant’s best interests. Perhaps the easiest way to ensure the balance is struck is to remember that our first obligation lies with the court and the higher ideals of justice: if assisting LIPs also means we are assisting the court, and causes no prejudice to the defendant, we should endeavour to do so.