HIGH COURT WRITES AN OPEN LETTER TO LITIGANTS IN PERSON: STRIKING OUT CAN BE A BENEFIT NOT A BURDEN

March 3, 2017 · by · in Appeals, Civil Procedure, Striking out

There are aspects of the judgment of Mr Justice Walker in Chambers -v- Rooney [2017] EWHC 285 (QB) that amount to an open letter from the High Court to litigants in person. Some of the observations are aimed at everyone involved in the litigation process.

“…the course to be taken by litigants in person – and indeed by litigants who are represented – is to stand back and review the case. For litigants in person, a decision striking out parts of the claim will generally be a clear indication that they have been fighting on too many fronts, and that they need to stop wasting time and energy on parts of the claim that are bound to fail.”

“Those who conduct litigation in person need to appreciate that steps which might redress any imbalance are more likely to assist if the litigant in person can stand back from the fray, and interpret what has been said by opponents and by the court objectively and in context.”

THE CASE

The judge was considering a without notice application for an extension of time to appeal. The claimant was a litigant in person and seeking to appeal case management orders made by the Circuit Judge.  The orders struck out part of the claimant’s case. The matter was listed on the issue of whether the claimant should have permission to appeal out of time and, thereafter, be granted permission to appeal.

THE JUDGMENT  (A GENERAL NOTE FOR LITIGANTS IN PERSON – AND OTHERS)

Part of the judgment contains general guidance to litigants in person, specifically in the context of striking out of part of a case.

B. Striking out heads of claim: value to a litigant in person
17.              Striking out decisions can, among other things, bring to an end parts of a claim which are unsound in law. Parts of a claim with no real prospect of success can also be brought to an end by using the summary judgment procedure. Bringing to an end such parts of a claim can be of particular value to litigants in person. In the remainder of this section I explain why. When doing so I shall, for convenience, refer simply to striking out part of the claim. Such references, however, should be treated as being references to one or other or both of striking out of, or the grant of an adverse summary judgment on, part of the claim.
18.              There is a real danger that litigants in person may press on with parts of a claim which seem to them to demonstrate how badly the other side has behaved but for which there is no legal basis. Similarly, there may be parts of the claim for which, despite the strong suspicions or firm belief of the litigant in person, there is plainly no factual basis.
19.              It will generally be of great assistance for litigants in person if these parts of the claim are struck out. Of course any strike out application will have been made because the other side thinks that striking out will be in its interests. However where a strike-out application succeeds against litigants in person, or the court of its own motion strikes out part of a claim by litigants in person, then litigants in person have a benefit that they would not otherwise have received. The relevant part of the claim has been examined by the judge, and disposed of at an early stage.
20.              Litigants who are represented have lawyers who can give them expert advice about the legal and factual merits of the case. Litigants in person often lack such advice. For litigants in person, a potential advantage of a strike-out decision against them is that it may, to an extent, remedy that lack. Among other things:
(1)               The physical and mental resources required when undertaking the tasks of preparing for and conducting a trial are all too easy to underestimate. Experienced advocates have warned that those tasks strain every nerve and sinew. The tasks of preparing and conducting a trial impose huge pressures on litigants in person. By striking out the relevant part of the claim, the court saves the litigant in person from the burden of preparing, and fighting at trial, parts of the claim which the strike out procedure has identified in advance as being bound to fail.
(2)               Striking out such parts of the claim will also benefit the litigant in person in relation to possible costs consequences. This is particularly so where the other side would incur a great deal of expense when answering the relevant part of the claim, both at trial and in advance of the trial. The future costs incurred by the other side on those parts of the claim will be substantial. Under our civil procedure system litigants in person are potentially exposed to an order that they must pay those costs. Thus, even if there are parts of the claim on which the litigant in person succeeds at trial, that victory may be a bitter one. This is because costs orders running to tens of thousands of pounds may be made against them in relation to parts of the claim which have failed at trial. Litigants in person have often found themselves facing ruin by attacking their opponents on too many fronts, with costs orders against them vastly outweighing any such amounts as may have been awarded in their favour. When striking out a part of the claim, the court will usually direct that the claimant pay the other side’s costs to date of that part. That will no doubt be painful. Nevertheless, because it was a claim which was bound to fail, the striking-out order minimises the pain and protects litigants from being at risk of an order that they pay future costs of the part of the claim in question.
21.              When parts of the claim are struck out the natural reaction of the litigant in person is disappointment. However the course to be taken by litigants in person – and indeed by litigants who are represented – is to stand back and review the case. For litigants in person, a decision striking out parts of the claim will generally be a clear indication that they have been fighting on too many fronts, and that they need to stop wasting time and energy on parts of the claim that are bound to fail.
22.              A strike out decision can sometimes assist litigants in person in other ways. Well before trial all litigants need to review the case. Things that litigants in person need to have in mind are discussed in chapter 15 of the Handbook for Litigants in Person. All litigants in person should pay careful attention to what is said in that chapter. Particularly relevant for present purposes is section K of that chapter. In that regard:
(1)               Experience has shown that mediation can have immense value at this stage, and indeed at earlier and later stages.
(2)               Where a case involves more than one head of claim, energy and resources should be concentrated on such of the heads of claim as plainly merit going to trial.
(3)               A head of claim will plainly merit going to trial only if, after standing back and impartially considering the other side’s answer to it, the head of claim is so strong on the law and on the facts, and so important, that it clearly justifies both:
(a)               finding the resources that would be needed to advance the head of claim at trial; AND
(b)               running the risk of an adverse costs order it the head of claim were to fail.
(4)               If no head of claim plainly merits going to trial, then urgent steps need to be taken to try to settle the case before the other side incurs more costs which the litigant in person may become liable to pay. If settlement discussions are fruitless, consideration should be given to discontinuing the case: see chapter 17 of the Handbook for Litigants in Person.
(5)               There may well be heads of claim which, even though they have not been challenged on a strike-out application, or have survived a strike-out application, should nevertheless be abandoned. Heads of claim fall into this category where:
(a)               they do not justify diverting resources which need to be devoted to other heads of claim with stronger prospects of success; OR
(b)               there is too great a risk that the litigant may lose and have to pay not just the other side’s costs on the head of claim to date, but also additional costs incurred by the other side in further preparation in answer to the head of claim and in successfully defeating it at trial.
(6)               Argument on a strike-out application, and the court’s judgment on such an application, may well assist in assessing whether there are heads of claim in the case which should be abandoned.
(7)               If a firm decision is taken not to pursue such heads of claim, the court and the other side should usually be told at once that they will not be pursued. Here, too, it may be useful to consider whether to utilise the procedure for discontinuance under CPR 38: see chapter 17 of the Handbook for Litigants in Person.”

[There are links to the Handbook for Litigants in Person & other sources of guidance available here]

THE ADVANTAGES OF “STANDING BACK”

Later on in the judgment, in response to an assertion that the court was taking insufficient steps to “redress the balance” for the problems caused by litigants in person, the judge stated.

    “Those who conduct litigation in person need to appreciate that steps which might redress any imbalance are more likely to assist if the litigant in person can stand back from the fray, and interpret what has been said by opponents and by the court objectively and in context.”

 

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