New CPR 3.1A - clearer court proceedings for litigants in person?

Litigants in person (LiPs) and their blanket impact upon the civil justice system have been a consideration of both government and judiciary for some time.

The latest proposals emanating from a sub-committee of the Civil Procedure Rules (CPR) committee would alter the manner in which the courts deal with civil proceedings involving LiPs, and redress the actual or perceived imbalance that has been perpetuated. 

Building upon the proposals of the 2012 Hickinbottom Report, the CPR committee created a sub-committee in 2014, with the clear objective ‘to implement the proposals of the [report], which made specific recommendations to facilitate access to justice by litigants in person’, thereby limiting the detrimental impact that any actual or perceived lack of justice would inevitably have. The sub-committee reported its findings and proposals in April 2015.

The new rule

The key proposal of the sub-committee is a new CPR 3.1A that would apply to any case where one or more parties were non-legally represented. The new rule, which comes into force on 1 October 2015, is as follows:

‘3.1A.—(1) This rule applies in any proceedings where at least one party is unrepresented.

(2) Where the court is exercising any powers of case management it must have regard to the fact that at least one party is unrepresented.

(3) Both the parties and the court must, when drafting case management directions in the multi-track and fast track, take as their starting point any relevant standard directions which can be found online at www.justice.gov.uk/courts/procedure-rules/civil and adapt them as appropriate to the circumstances of the case. 

(4) The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective.

(5) At any hearing where the court is taking evidence this may include:

(a) ascertaining from an unrepresented party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.’

Analysis

The new rule has three distinct elements. 

1. The court must ‘have regard to the fact that at least one party is unrepresented’, and alter any draft directions appropriately, when exercising any case management powers.

It is clear, in my view, that the committee wish the judiciary to hold ultimate discretion to deal with any case or hearing they consider would best serve justice and the furtherance of the overriding objective, and to enable the judiciary to draw pertinent evidence from the parties before it.

We all deal with a great number of cases where LiPs simply misunderstand the requirements and expectations incumbent upon them. They fail to engage owing to a fundamental lack of understanding.

This overriding proposal appears to be a move to simplify the system further to allow LiPs to better understand what is expected of them. Presumably, it is hoped that, as a result, LiPs will be less likely to fall foul of the rules, and cases will run more smoothly.

However, it is important to stress that LiPs are not being afforded any more leniency than legal professionals. Quite the contrary: with simplified orders and procedures, it is likely that any failure to comply on behalf of a LiP will be more easily penalised. With increased understanding on the LiP’s part, any argument of ignorance of the law and court rules must surely decrease. If so, I would argue that this should (at least in theory) reduce satellite litigation under CPR 3.9.

2. The court must ‘adopt such procedure at the hearing as it considers appropriate to further the overriding objective’. This is the introduction of the discretionary ability to deal with trials in an inquisitorial, as opposed to adversarial, manner over all case management tracks.

For small claims lawyers, this is not a new concept. Indeed, the Civil Justice Council publication A Guide to Bringing and Defending a Small Claim (2013) confirms the flexibility with which the judiciary can deal with such cases: ‘Some judges adopt the normal trial procedure whereby each party presents their case but others are more inquisitorial.’

In my experience, by far the majority of small claims trials involving LiPs are now conducted in the manner of an interim hearing, with the district judge taking a more interventionist approach. I feel that they run with greater efficiency, and enable the crux of cases to be identified and argued without unnecessary elaborative or peripheral argument.

This rule change will merely seek to expand that procedure to the fast and multi-tracks. While trial advocates may find this alternative procedure unusual, I am not greatly concerned. I believe that it could mean trials will be concluded more swiftly, thereby saving both the court’s time and the financial resources of the parties. Crucially, this would not be at the expense of the administration of justice. However, I acknowledge that there is room for debate here!

3. The proposed CPR 3.1A(5) suggests the possibility of a judge ‘crossing the divide’ in some cases. The judiciary are now provided with an additional ability to ascertain the matters upon which a LiP would wish to cross-examine their opposition and put, or cause to be put, questions which appropriately probe them in the manner in which that litigant would have done, had they possessed sufficient ability. This appears to be the most drastic change, and could have a significant impact.

It is, of course, a difficult problem to square. How does the sub-committee eliminate what may be an actual or perceived significant imbalance between the litigant and the eminently-qualified QC against whom they appear, without crossing the divide into ‘mild’ representation?

Evidently, the judiciary must be non-partisan. I do not believe that the rule change would effect this.

My concern lies with the threshold of when a judge should utilise their discretionary power. Presumably, the judiciary must appraise a LiP’s ability as an advocate, as a cross-examiner, and then may intervene if their ability to scrutinise the opposition’s evidence may be lacking. The circumstances in which a judge may intervene, or be expected to intervene, in such a manner is not set out and, on the face of it, is entirely discretionary. I fear that the judiciary may feel a necessity to over-apply this rule for fear of appeal, if not utilised.

Helpfully, the CPR sub-committee has not made sweeping amendments to the CPR which apply to LiPs, and has ruled out simplification of any other parts of the CPR. Its suggestions are sufficiently broad to permit the judiciary to apply discretion to the manner in which they apply the CPR, without there being any express or implied disparity between those legally represented and those that are not.

We will have to bide our time and wait to observe the ramifications of the changes, following their implementation on 1 October 2015.