Over the past 8 years i have dealt with a number of consumer credit litigation matters. Many of the case have arrived on my desk at an early stage and it has been possible to knock the case into order promptly. A case that is shambolic is every lawyers worst nightmare, the last thing you want to have to do is hit the ground running and trying to get proper discovery of core documents with less than 2 days before the Defence needs to be filed and served.
I know its possible to apply to the Court for an extension of time, but the truth is that you really shouldnt have to if youve followed the CPR and the Pre Action Protocol Practice direction.
This is fundamentally where consumers go wrong, most people are too trusting for starters, so i have decided to bullet point some of the chaotic things litigants in person do and the difficulties it causes.
1. LIPs generally are too scared of replying to a claimants letter of claim. Often it is to avoid limitation, or at least thats the explanation often offered. “I didnt reply because i didnt want to reset the statute barred clock” well news flash, if you dont reply to a pre action letter not only are you risking prejudicing your ability to defend the case you are also placing yourself at the risk of adverse costs. Wake up and smell the coffee.
2. Litigants in person also seem to be like rabbits in the headlights when it comes to litigating, yes i know we go to law school and a lip doesn’t, but there is plenty of advice on the numerous internet forums and people often fail to follow it or read the Civil Procedure Rules etc. A prime example, a claimant fails to serve documents requested under rule 31, so the LiP agrees an extension of time for the Defence, up to the maximum 28 days, then sits on his hands until day 28 and panics because he has 8 hours to lodge his defence. A better way would be to agree an extension of 28 days, tell the claimant he has 14 days to serve documents and at the point of failure lodge an application which will then give you 14 days to prepare, draft and finalise the application and get it to the Court in time.
3. Another litigant in person failing, the Court makes an order to exchange statements by 4pm on xxxx, however the Claimant fails to serve his statement in accordance with the order, so the Lip Decides not to send his statement too. Fatal breach of the rules, and will undoubtedly leave the LIP needing to apply for relief from sanctions, and in reality the lip would have no real prospect of overcoming these problems. Point of order, comply with the bloody Court order without exceptions and sod what the oppo does, if the oppo fails to comply then get a letter into the Court telling them you’ve complied the oppo hasn’t. If the Court asks for an application then lodge one, spending £155 on an application could be the best £155 you will ever spend in the proceedings, especially if it gets the Claimants claim thrown out.
4. Use the rules, comply with the rules, a prime example here was a case where the Lip had been presented with a summary Judgment application, purely because they had not followed the rules, in essence the Claimant was taking the LIP as a mug. They were arguably entitled to do so as well, although you may say its a lawyer taking an unfair advantage, in reality it isnt, the litigant had presented a defence so incoherent that the lawyer was entitled to apply for judgment. The problem the LIP had was that his case was a corker, he hadnt pleaded it properly (first mistake) he hadnt made it clear to the Claimant what his case was (second mistake) he had ignored all correspondence (third mistake) and his biggest error was the fact that he had not lodged any evidence in opposition of the summary judgment application. A witness statement opposing summary judgment is essential in such circumstances, setting out at least why the Defendant has a real prospect of success in Defending the Claim. Fail to prepare then prepare to fail.
The above 4 points are the main problems i see with LIP Cases. It is unfortunate but with the increase in Court fees, the lack of legal aid, and the removal of recoverable success fees & ATE unless the litigants in person start using the rules to protect themselves then things will only get worst.
What frustrates me the most, is that many of the cases which i see in difficulty could have been turned around had the client contacted a lawyer. I still take cases on no win no fee, despite the changes to civil litigation funding it is still possible to defend a case on a no win no fee basis. Its a shame that people dont get in touch sooner.