Litigant in Person (LiP)

What is a Litigant in Person (LiP)?

The term commonly encompasses individuals who wish to represent themselves in legal proceedings, which may progress to court or tribunal. A litigant in person can be an individual, company or organisation. They have the right to address the court in person.

With careful preparation litigants in person can achieve victory against even the most well represented opponent.

What are the responsibilities of a Litigant in Person (LiP)?

As an LiP you need to have an understanding of the court process and service of papers, court documentation, Pre-action Protocol, the Civil Procedure Rules (CPR) and Practice Directions.

The Court process is adversarial in nature and consequently only one party can win the case.

First and foremost you need to form an objective assessment of your own case. As claimant you will need to prove your claim to a reasonable standard. You do this with evidence. If you cannot prove your claim then you will not win.

What are the benefits of being a LIP?

"The rise of the litigant in person is an inevitable fact of life, but their favourable treatment by the courts is beginning to ring alarm bells. While the judiciary are rightly seeking to ensure a 'level playing field', my recent experience is that the represented litigant is now at a distinct disadvantage when appearing opposite a litigant in person.

A procedural hearing that should take no more than 15 minutes can now take twice as long, as the district judge patiently and laboriously explains each and every step to the litigant in person; a case listed for one hour can take two, while the litigant in person wastes time in obfuscation and irrelevancies.

The district judge, fearful of an appeal, is often more lenient and generous to the litigant in person than to the representing solicitor; rules are sidelined and breaches overlooked. And all the while the paying client observes in wonderment as his or her legal adviser is repeatedly told to stop objecting, and their original costs estimate quietly doubles.

I am seriously considering advising some of my clients to attend court in person when faced with a litigant in person, so as to ensure a truly 'level playing field'."

- October 2011 - A letter to the Law Society Gazette from a family solicitor suggested that the represented litigant is now at a distinct disadvantage when appearing opposite a litigant in person.

What assistance is available to LiPs?

During court proceedings, LiPs have the right to seek reasonable assistance from a layperson, sometimes called a McKenzie Friend. A McKenzie Friend may sit alongside a LiP and provide general support. You should note the following in relation to McKenzie Friends:

A McKenzie Friend is permitted to further the interests of justice by achieving a level playing field and ensuring a fair hearing. Requests for such assistance will only be refused for compelling reasons, and in the event, the judge must explain those reasons fully to the LiP and the prospective McKenzie Friend.

A LiP cannot allow a McKenzie Friend to speak directly on their behalf unless invited to do so by the court, either within the confines of the court or in pre-trial meetings.

A LiP is entitled to disclose confidential information and court papers to the McKenzie Friend in order to give them a better understanding of the matter in hand.

A McKenzie Friend may assist with such tasks as taking notes, helping to organise documents, and making suggestions.

McKenzie Friends are not permitted to act as a LiP's agent in relation to court proceedings or manage a LiP's case outside of court. If you receive correspondence from a McKenzie Friend on a LiP's behalf, you should respond to the LiP directly and not to their McKenzie Friend.

A LiP will need to advise the court if a McKenzie Friend will be attending hearings, meetings etc., but a McKenzie Friend has no right of address to the court.

It is not good practice for the court to exclude the proposed McKenzie Friend from the courtroom or chambers whilst the application for assistance is being made by the unrepresented party, as a LiP who requires a McKenzie Friend is likely to need their assistance to make the application for their appointment in the first instance.

What costs are recoverable by a Litigant in Person (LiP)?

Litigant in Person Costs and Expenses

The costs recoverable by parties are governed by the Litigants in Person (Costs and Expenses) Act 1975 and by CPR 48.6.

The rules on what costs you can recover if you win depend on the track your claim is directed to.

small claims track

Generally for cases worth less than £10,000 and you cannot expect to recover much more than the court fee. The fast track is generally for cases worth between £10,000 and £25,000 and the amount of costs that can be recovered are somewhat limited.

Even if your case is worth more than £25,000, you cannot expect to recover everything. As a general rule the loser pays a contribution towards the winner's costs. However, this rule is not always followed and it is within the discretion of the judge to make a different order – and they often do.

If you win some issues but lose others the court may reduce the costs you could otherwise recover by a percentage, again within the discretion of the judge. This is true even if you win overall.

If costs exceed the amount the judge considers to be proportionate, then the judge will go through the extra costs and only order your opponent to reimburse those items he considers were necessary and only allow a reasonable amount for them.

Further, the court can increase or reduce the amount your opponent is ordered to pay you for a number of other reasons:

• the conduct of each party towards the dispute before the proceedings were started,
• the way each party conducted the proceedings,
• the efforts made to settle the case,
• the importance of the case to the parties,
• the complexity of the case

Where a claim is directed to the small claims track and then subsequently re-directed to another track costs on the small claims track will cease to apply after the claim has been re-allocated, and the fast track or multi-track costs rules will apply from the date of re-allocation.

fast track or the multi-track

Out of pocket expenses

These are costs such as court fees, travelling expenses to court and witness expenses if they relate to work that would have done by a solicitor had one acted for the litigant in person.

Payments for expert assistance

These are costs in connection with assessing the costs of the claim, for this matter the expert would be a solicitor or barrister, however if the solicitor or barrister is giving general advice a claim cannot be made for assessing costs.

Costs for work done by the litigant in person

Costs that caused the LiP loss eg losing a day's pay to attend court.

Calculation of charges for time spent in preparing the case. To determine the cost of time spent the judge must consider the following:

• What work was done and how much time did it take?
• Was the work necessary, if so was an unreasonable amount of time spent doing the work compared to the time needed for a solicitor to do the same work?
• The hourly rate for work is £9.25 unless other financial loss can be shown.
• If the work was done by a solicitor what would it have reasonably cost?
• When a LiP intends to show a financial loss they must provide court with written evidence to support that claim, they should also supply a copy to the other party.

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