You may well have seen reports in the legal press regarding a case that has progressed to the Supreme Court where it is essentially said that the Civil Procedure Rules (CPR) are too complex to navigate for litigants in person and they should in consequence be given more allowances.
To my mind whether the CPR is too difficult in places for a litigant in person to navigate is beside the point (and I must say in this instance the method of service of a claim form should have been accessible). The fact is that rules are in place so as to allow a system where justice can operate as far as is possible. If it is one rule for one and one rule for another that cannot be right. One can even envisage circumstances where similar situations in different cases would be treated differently due to broader judicial discretion.
Litigants in person are already given some limited discretion in my experience. However, there cannot be a complete indulgence against the rules otherwise the roles of the opposing solicitor and the Judge become problematic as there is no guideline to properly make decisions against.
If a litigant in person feels they cannot navigate the CPR and cannot instruct solicitors on an ongoing basis to navigate it for them they can still look to ad hoc advice (indeed in the particular case direct access is now taken) or even the Law Society or Citizens Advice. Pro-Bono advice clinics are also available with Universities, I for one regularly participate in those.
A structured framework must be upheld with parties knowing that if the Court rules are breached the prescribed consequences will follow, not that a party may or may not be let off as it happens not to have engaged representation. That leads to a potential circus in my view.
Former LiP Mark Barton took his appeal to the court last week, arguing he was ill-equipped to understand the Civil Procedure Rules. A successful appeal could mean the rules are refreshed to adapt to the growing number of individuals litigating without legal representation. This is believed to be the first time the Supreme Court has been asked to consider the unrepresented status of a non-compliant litigant. Barton brought professional negligence proceedings against Midlands law firm Wright Hassall after it came off the record in 2007 in relation to a negligence claim against his former solicitors. Subsequently unrepresented, Barton emailed his claim form to Wright Hassall’s lawyers without confirmation that it would be accepted this way. The claim was subsequently ruled invalid.