MISTAKES, APPEALS, DENTON AND LITIGANTS IN PERSON: “JUDGES DIFFER, ONE FROM ANOTHER, IN SMALL, HUMAN, WAYS”

In EDF Energy Customers Ltd v Re-Energized Ltd [2018] EWHC 652 (Ch)  HHJ Paul Matthews (sitting as a High Court Judge) carried out a comprehensive review of the authorities relating to the latitude to be afforded to litigants in person. It shows clearly that the fact that a litigant was unrepresented does not give it any special status, nor is at liberty to argue, on appeal, that the case could have been argued differently below.

“I bear in mind also that a litigant in person is not the only party to consider. I must also consider the position of the represented party and the public generally. Every indulgence given to a litigant in person casts an extra burden on the represented party and on the court system. This extra burden is usually marginal, but it mounts up over time. Yet a represented party too may have limited resources, and may have had to make choices, indeed sometimes sacrifices too, in allocating resources so as to be able to afford representation. Delays and lack of finality may impose unwanted and unwarrantable costs on him or her too. The same is true of the court system.”

THE CASE

A company, acting without legal representations,  appealed against a winding up order. The respondent  creditor had sent out a statutory demand.  The company made an application to restrain advertisement of the petition. That application was refused.   In correspondence with the creditor’ss solicitors it was pointed out  to the company directors that the application to restrain an advertisement was a different application to that opposing the petition, although the principles to be considered, were largely the same.

The company then attended at the hearing for winding up. The District Judge held that most of the points taken by the company had been decided against it in the failed application to restrain advertisement.   A winding up order was made.

THE APPEAL

1. 1. The grounds of appeal as filed were that:

“The hearing on 18 July was procedurally and substantively unfair such that the debtor was not given a fair hearing or any proper opportunity to advance its opposition to the petition;

The District Judge fell into error by:

(i) concluding that the earlier determinations made by the Court on the debtor’s unsuccessful application for an injunction restraining the advertisement of the petition rendered further consideration of the debtor’s opposition to the petition unnecessary,

(ii) adopting the decision of the Court in relation to the advertisement without sight of the key documents (essentially the petitioner’s pre-action letter and the contract between the parties) and without consideration of the debtor’s contentions that its case in relation to its opposition to the petition had not been fully put before the Court on the Injunction application (due to lack of legal representation and the abridgement of time notice of the injunction hearing (1 1/2 days)),

(iii) refusing the debtor’s request to consider the key documents (a spare copy of the key documents were available in Court and were offered to the District Judge),

(iv) failed to give any, or any proper consideration to the debtor’s complaints that it had been (innocently but importantly) misled by the petitioner’s solicitors who had assured the debtor that at the hearing of the Petition on 18th July the debtor would be entitled to argue the contract construction point that was the core of its opposition to the petition,

(v) failing to consider the debtor’s alternate arguments (as set out in the debtor’s Skeleton Argument);

(vi) proceeding with the hearing went key documents and papers were missing from the court file (the hearing had been transferred at late notice to the Bristol Magistrates Court due to a flooding problem in the building occupied by the Bristol District Registry),

(vii) such further grounds as Counsel may add to this application.”

THE APPEAL HEARING

The company instructed counsel by direct access at the appeal hearing.

THE RULES AND PRINCIPLES RELATING TO LITIGANTS IN PERSON

The judge carried out a detailed review of the cases relating to the treatment of litigants in person (worthwhile looking at for litigants in person and those who have cases against them) and concluded.

“From these authorities I derive the following principles:

1. There is a general duty on tribunals to assist litigants, depending on the circumstances, but it is for the tribunal to decide what this duty requires in any particular case and how best to fulfil it, whilst remaining impartial.

2. The fact that a litigant is acting in person is not in itself a reason to disapply procedural rules or orders or directions, or excuse non-compliance with them.

3. The granting of a special indulgence to a litigant in person may be justified where a rule is hard to find or it is difficult to understand, or it is ambiguous.

4. There may be some leeway given to a litigant in person at the margins when the court is considering relief from sanctions or promptness in applying to set aside an order.”

APPLYING THIS TO THE CURRENT CASE

1. In the present case Mr Watson was an articulate and knowledgeable layman, as one would expect of the owner of a sophisticated modern business. However, I bear in mind that Mr Watson did not seek an adjournment on either the injunction hearing or the winding up hearing in order to obtain legal representation. Nor did he take advice from a lawyer on the question of the effect of the emails coming from the respondent’s solicitors to him as to whether he could run the same arguments again at the winding up hearing. Nor did he seek to appeal the injunction ruling. Mr Watson accepts that he knew he could appeal. Indeed, he says that he would have appealed the injunction ruling but for the emails coming from the solicitors for the respondent, which he misconstrued, but on which he did not seek advice. What the solicitor said was correct as far as it went. He could have said more (indeed, he could have said rather less), but there was no duty, as Mr Watson accepts, on those solicitors to advise him as the adverse party. In my judgment those emails were not misleading, and do not alter the basic position.

2. The rules in this part of the law are not hard to find, and neither are they particularly difficult to understand. Of course, I accept that a layman without any experience of finding his way round a law book or the statute book will take longer to do so, and may fall into error more easily and more frequently than a trained lawyer. That is, after all, why it takes training to become a lawyer. Yet Mr Watson had been able to put together a sensible skeleton argument and a bundle for the injunction hearing, a written argument before the district judge, and also a bundle for this appeal. That was of course his choice, as to how he allocated the company’s available resources. But he cannot complain if it does not produce the result he wished for.

3. I bear in mind also that a litigant in person is not the only party to consider. I must also consider the position of the represented party and the public generally. Every indulgence given to a litigant in person casts an extra burden on the represented party and on the court system. This extra burden is usually marginal, but it mounts up over time. Yet a represented party too may have limited resources, and may have had to make choices, indeed sometimes sacrifices too, in allocating resources so as to be able to afford representation. Delays and lack of finality may impose unwanted and unwarrantable costs on him or her too. The same is true of the court system. Everyone knows that resources are limited. If cases overrun, or need to be adjourned or relisted, that consumes more resources that could be used for other litigants. So, overall, in my view there should be no special treatment for Mr Watson here because he was a litigant in person at first instance.

THE HEARING

1. 1. I turn to the first argument made, that the hearing below was unfair. I remind myself that Mr Watson could have sought to appeal the earlier injunction ruling but did not do so. He says he misunderstood or misinterpreted the solicitors’ emails, but I think they are both accurate and clear. If Mr Watson wanted reassurance that he could rely on, he should have consulted his own lawyer. He chose not to. The district judge was hard pressed, with limited time in a busy list. He had the documents on the court file and the documents with which he was presented at the hearing, including the appellant’s written arguments. He asked the right questions, invited Mr Watson to make any new points not advanced at the injunction hearing, and listened to what Mr Watson had to say.

   2. In my judgment, there was no duty on the court in those circumstances to give any further assistance to an articulate and knowledgeable litigant in person. In particular, there was no need to go through any checklist of points to see whether there could be anything else which Mr Watson had not mentioned but should have mentioned. Mr Watson did not raise a number of the points now raised by counsel on the appeal. The district judge in his judgment asked himself the right questions. He also asked whether Mr Watson had any further points to make (and he did not). From the district judge’s judgment it is clear that he considered whether the conditions for the making of an order were satisfied, and that he understood that he was exercising a discretion (on judicial principles) as to whether to make an order. Finally, there is no duty on any judge to give a full-length detailed judgment in every case. It is enough if the judge’s reasoning is apparent. In this case it was.

   3. In any event, as Park J put it in Re Lummus Agricultural Services Ltd [2001] 1 BCLC 137, 141g,

“It is well settled that, if a creditor with standing to make the application wants to have the company wound up, and if the court is satisfied that the company is unable to pay its debts, a winding-up order will follow unless there is some special reason why it should not. It is sometimes said that in such a case, a petitioning creditor is entitled to a winding-up order ‘ex debito justitiae‘.”

1. In my judgment, the procedure adopted by the district judge in this case was not in breach of the rules, and was not unfair. As it seems to me, the attitude of the company in this case comes close to saying that, in the case of a litigant in person at least, but maybe in that of every litigant, the litigant has the right to the ‘correct’ result. This is not so. Indeed, it could not be so. In most cases both sides think they are right. But they cannot both be right. And judges differ, one from another, in small, human ways. Even the same judge may not think in exactly the same way day after day. Instead, what every litigant has the right to is a due, or fair, process. If the process itself is a good one, and is correctly followed, this is the best guarantee we have of achieving the ‘right’ result. But merely because, in any particular case, the process does not reach what the litigant considers to be the ‘right’ result, does not mean that it was unfair, let alone unlawful.”

RE-OPENING MATTERS ALREADY DECIDED

The judge went on to consider the issue of whether it was open to the company to attempt to re-open matters, or put forward matters that could have been argued below.  The general principle was that a debtor could not seek to re-open grounds that had been argued, unsuccessfully, before.

1. 1. There is nothing to indicate that the relevant principle is any different when it is a case of an argument that could have been made but was not. Mr Budworth says that, even so, in the present case what is different now is that the company is legally represented. That is true, but in my judgment it is a long way from the “change of circumstance” which Chadwick LJ (or Henderson LJ in Dunbar Assets) had in mind. As I have already said, Mr Watson chose to represent the company himself rather than spend money on a lawyer. That was his choice. But it would not be right to hold that a party could act in person at the first instance hearing, and then, if the result went against him or her, appeal with legal representation to present the same arguments again, or to present arguments which could have been made but which were not. That would be a recipe for wasting scarce judicial and court resources, exactly what the courts have been concerned about in this part of the law.