The attitude towards Litigants in Person: An end to latitude?
Niloo Bozorgi explores the additional challenges of defending a claim when the patient is not legally represented and hopes that the courts may be becoming a little less lenient towards such litigants.
First published in Independent Practitioner Today in July 2019
A claim is always distressing to face and time-consuming to deal with. Your insurer or indemnity provider will assist you, or instruct lawyers to advise you, but you will have to provide them with input – an explanation of the medical records, your recollection of what happened, and your opinion of the allegations made against you. At various stages throughout the process of defending or settling the claim, you will find this time consuming – and even more so if the claimant (your patient) is not legally represented.
A Litigant in Person (‘LiP’) is the term used to describe an individual who represents themselves in legal proceedings. This is not a new phenomenon in civil law, however since the cuts to public funding for legal costs and the increase in the jurisdiction of the “small claims” Court there has been a sharp rise in the number of LiPs. This applies to clinical negligence claims too, in which we are increasingly finding claimants (patients) bringing claims without the benefit of legal representation. This has a number of disadvantages.
Nearly all cases brought in clinical negligence (in which the claimant is represented by a solicitor) are funded by a Conditional Fee Agreement (‘CFA’), commonly known as a ‘no win, no fee’ agreement. Before entering into such an agreement, the solicitor will evaluate whether the case is strong enough to justify taking it forward. This is in their own interests as they will not be able to recover their costs should the case be without merit. There is no such analysis when claims are brought by LiPs, and therefore there is a greater chance of an unmeritorious case being pursued.
This is only one of the difficulties with claims brought by LiPs. There are others. Without a solicitor acting for the patient to act as an additional buffer, there is often a heightened degree of emotion in the process and a greater likelihood of personal comments against the defendant doctor in correspondence, which can be distressing.
The LiP must identify the correct medical expert in the right clinical area of expertise who undertakes medicolegal reporting and instruct the expert to report on all relevant issues and interpret their findings so that they can bring a claim without any specialised knowledge or previous experience. This is very difficult, and as a result claims brought by LiPs are often poorly drafted, and therefore the defence is put in the position of responding to a case in which the allegations are not at all clear. This leads to greater uncertainty about the likely outcome of a case.
The principle of fair access to justice dictates that a just and fair outcome should be achieved regardless of whether a party is legally represented. Guidance issued in March 2018 by the Judicial College cautions judges against viewing LiPs as an unwelcome problem for the Courts. Indeed, in order to ensure justice and fair outcomes, the Courts have historically shown a degree of leniency to LiPs that has not been granted to represented parties. In one memorable case the majority in the Court of Appeal felt that it was too draconian to deprive a LiP of his right to trial even though he was unable to formulate his cause of action for the judge and the Defendant, despite being given repeated opportunities to do so. Often LiPs attend hearings having failed to comply with procedural rules governing litigation or a Court direction and the Courts have nevertheless attempted to plough on with the case – something that would not be countenanced if the claimant was legally represented.
One of the consequences of this is that the legally represented party in effect subsidises the LiP by bearing the cost of preparing bundles, drafting additional court documents and dealing with what can be an abundance of informal and unfocussed emails from the LiP. At the end of this process, even if the clinician is successful and is awarded costs (rare enough these days), there is the risk that the LiP may not be able to pay the costs. In the case of medical practitioners with the benefit of insurance or indemnity, there will be no immediate financial cost to the doctor, but there are non-financial costs of dealing with a claim brought by a LiP too – the case may take longer to resolve, and the way in which it progresses will be less predictable (because the LiP doesn’t know the rules) and therefore more stressful.
There has however recently been a shift in judicial attitudes; and a series of recent cases have shown that increasingly the Courts will have less tolerance for non-compliance with the rules even by LiPs. Perhaps most significant of these is the judgment of the Supreme Court in Barton v Wright Hassall LLP [2018], which acknowledged that the restrictions in legal aid and conditional fee agreements mean that, currently, pursuing a claim as a litigant in person is “not always a matter of choice”. However, the Court was clear that there was no justification for applying a lower standard of compliance with rules or orders made by the court to LiPs.
This trend has continued and most recently in Al-Hasani v Nettler & Ors [2019] the court held that it should strike out the LiP’s statement of case for various failures to comply with a rule, practice direction or court order.
Those of us who represent defendant doctors hope that this will come to be the accepted approach in dealing with LiPs who fail to comply with the procedural rules and/or court orders on the basis that they have no experience, knowledge or understanding of the rules governing litigation.