Tinkler and another v Elliott [2012] EWCA Civ 1289

Mr Elliot a Litigant in Person (Defendant) failed to attend trial however he did provide a medical certificate of unfitness to attend court. The trial judge rejected this and granted the Claimant a permanent injunction and general restraining order against Mr Elliott.

The matter was appealed to the High Court who set the judgment aside under CPR 39.3 holding that Mr Elliott had a good reason for not attending the original hearing. The Claimant appealed this decision and the The Court of Appeal restored the original court's decision, holding that CPR 39.3 had to be rigorously adhered to and made it clear that under CPR.39.3 the court had no discretion to set aside a decision taken in a party's absence until the applicant satisfied three requirements of the rule.

The first requirement was that the applicant had acted with all reasonable speed in the circumstances. Though Elliott had relied on his poor mental health and "his ignorance as a litigant in person of the availability of an application to set aside". The Court of Appeal held that Mr Elliott had been capable of acting as a litigant in person. What is important about this case is Court of Appeal's views regarding his ignorance as a Litigant in Person.

The Court of Appeal said that "there may be facts and circumstances in relation to a litigant in person that may go to an assessment of promptness .... they will only operate close to the margins," and they further stated that "an opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person," and that lack of understanding of procedures "does not entitle him to extra indulgence".

However you must appreciate that Mr Elliot had waited 21 months in which to make his applications and if you made an application promptly the Court may take a different approach however, you can see from this case what the Court's general approach is.

SO DO NOT DELAY IN MAKING ANY APPLICATION OR APPEAL

In the case of Fernandes v Kenny and Others, Court of Appeal, 23 October 2012

A Landlord who was acting as a Litigant in Person applied to set aside a judgment for damages in respect of a deposit, the judgment had been entered at a small claims hearing and he had not attended the hearing.

His application to the District Judge failed, as did the first tier appeal to the Circuit Judge, who held that there was no discretion to hear an application made out of time.

The Court of Appeal reminded the Circuit Judge that he had overlooked the fact that Civil Procedures Rules 3.1 allowed the court to extend the time limit set out in Civil Procedure Rules 27.11(2) but still found that the lower courts had been correct in its Judgment that the landlord had had no good reason for failing to attend the original hearing.

THE MORAL OF THE STORY IS ATTEND ANY HEARINGS THAT THE COURT DIRECTS YOU SHOULD ATTEND AND IF SOMETHING VERY URGENT HAPPENS (and I mean very urgent i.e. death of a member of the family (close) or your own illness then inform the Court immediately and provide proof i.e. a letter from your GP.

The Employment Appeal Tribunal has taken a different view in relation to litigants in person in Employment Tribunals, but in view of recent decisions in the Court I would not rely on the employment tribunals remaining slightly more lenient in their decisions.

However in the recent case of AQ Ltd v Holden [2012] IRLR 648 which dealt with the question of whether a litigant in person should be responsible for Respondent's costs The Employment Appeal Tribunal held that a court was entitled to consider the fact that a party was a litigant in person in deciding whether to order costs against that party. They made it clear that the law was the same whether or not a litigant was professionally represented or not. However the EAT considered that the application of the law, and the court's exercise of its discretion, had to take into account whether a litigant was professionally represented and should not judge a litigant in person by the standards of a professional representative.

They went on to state that Justice required that tribunals did not apply professional standards to Litigants in Person, as, in many cases, they lacked objectivity and knowledge of law and practice brought by a professional legal adviser. However they made it very clear that Litigants in Person should not regards themselves as immune from a costs order being made against them and this has been made clear in the recent case of Vaughan v London Borough of Lewisham and others when the Litigant in Person had £60,000 in costs awarded against her where the EAT applied with Rule 40(3) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which provided that an order for costs could be made where the paying party in bringing or conducting proceedings has acted vexatious, abusively, disruptively or otherwise unreasonably. The rules that clarify a Litigant in persons' right to costs can be found at The Litigants In Person (Costs and Expenses) Act 1975; The Act gives a Litigant in Person the right to recover "sums in respect of any work done, and any expenses and losses incurred, by the litigant in or in connection with the proceedings to which the order relates".

It applies to all civil and family courts, the Lands Tribunal and both the first tier and upper tribunals and most cost-bearing tribunals; Under S1(1) of the Act Litigants in Person should be aware that only out of pocket disbursements are recoverable if costs are not recoverable.

In Agassi v Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 [2006] 1 All ER 900 it was established that even if a Litigant in Person had been represented by a professional legal adviser for part of the proceedings they could still apply for the costs they incurred when they were not presented.

If you do decide to claim your costs as a Litigant in Person you should file and serve written evidence to show details of your costs and disbursements no later than 24 hours before any hearing. If the costs you are applying for are to be subject to a detailed assessment by the Judge at the hearing you are attending then you must provide written evidence with the of your costs. I personally don't believe in leaving these matters to chance and I advise all my clients to ensure that details of costs are provided 7 days before any hearing. I not only send it to the Court via post but also fax it and I ensure that I get a copy of proof of postage and keep the fax receipt sheet, then there can be no question that I file it in good time especially as Courts have a habit of losing documents. Don't forget to take a further three copies to the Court with you, one for you, one for your opponent and one,

When applying for your costs don't be greedy and don't try to fool the Court under CPR 46.5(5), you cannot claim a witness allowance as well as your time as attending as a witness. CPR 46.5(5) states "A litigant who is allowed costs for attending at court to conduct his case is not entitled to a witness allowance in respect of such attendance in addition to those costs".

You cannot in any event recover more than two-thirds of the amount to which a solicitor would have been entitled. But you can recover your disbursements in full.

As a Litigant in Person you have to show that on the balance of probabilities a financial loss has been suffered.

In Mainwaring v Goldtech Investments Ltd [1997] 1 All ER 467 the Court considered whether a Litigant was entitled to their costs and in making this decision they compared the financial losses that would have been sustained between a "a self-employed tradesman in a small but profitable way of business who had more custom than he could cope with and could fill every working hour to advantage; IN OTHER WORDS A PERSON WHO WOULD HAVE TO TAKE TIME OUT OF HIS BUSY WORK SCHEDULE TO CONDUCT LEGAL PROCEEDINGS AS A LITIGANT IN PERSON, or at the other extreme, a retired civil servant with an index-linked pension who found the conduct of litigation a more interesting pastime than bowls or crossword puzzles". The question that would be ask in this instance is could this person prove that they had suffered a financial loss in acting as a Litigant in Person.

Joseph v Boyd and Hutchinson [2003] EWHC 413

In the case of Joseph v Boyd and Hutchinson [2003] EWHC 413 the court considered that it should adopt a broad brush approach when considering if a Litigant in Person was entitled to costs in circumstances where a Litigant in Person undertook work during hours when the Litigant in Person should have been engaged in their normal employment. The Court said they would not need to find out the ins and out of which work a Litigant in person had done but the Litigant in Person would have to prove that he was employed and how much he/she earnt

To claim costs you must prove that you have undertaken work that a legal representative would have undertaken and a disbursement must be one that would have been incurred by a legal representative. In the case of Grand v Gill [2011] EWCA Civ 902 the court followed the decision in R v Legal Services Commission Ex Parte Wulfsohn [2002] EWCA Civ 250 that a reasonable sum was payable for costs where time was spent on research.

The Courts now have the very strict rules regarding proportionality so if your claim is worth £5,000 the Courts will not consider your claiming £15, 000 in costs. The figure you submit in respect of costs must be proportionate. In the case of Grand the court reduced the costs from £15,000 claimed to £707.77.