At Darlingtons, we understand and empathise with clients in the difficult issue, not least financial, as to whether to instruct solicitors or try to deal with litigation themselves.
However, as a recent case graphically illustrates, law and legal issues are generally complex, not only in terms of the law but the procedural rules in court.
Under the English court system, litigation rules are contained in the Civil Procedure Rules. These are highly complex and run to several hundred pages. In order to make the system fairer and, on the face of it, somewhat easier, for litigants in person, some years ago, the rules introduced the concept of the “overriding objective“.
This rule was established as the primary rule for Judges to consider when considering the detailed rules contained in the CPR and the intention was to ensure that a party with significant financial resources such as a big company could no longer seek to bully or intimidate an opponent with less resources and to provide Judges with a degree of discretion to reflect the fact that if party is not legally represented and may perhaps claim not to have known about or understood a rule relating to the case, some leeway would be granted by the Judge.
Of course the above is a good thing in ensuring a fair approach, although I have to say there are many instances where litigants in person are quite clearly claiming ignorance as a way of stalling or playing the game themselves, and anyone thinking they will get away with such an approach may well come a cropper so to speak.
A good example of the complexities of the potential interaction between the overriding objective and the strict CPR rules comes from a recent case relating to an application to set aside a judgment.
Such applications are quite common – judgments are entered very regularly where a claim has been issued and no defence gets filed by the defendant. The defendant will often claim not to have received the claim form in the post or that there was some intervening event or circumstance which explains why they did not file a defence.
When applying to set aside a judgment, one of the considerations for the court is how quickly the application to set aside is made once the defendant becomes aware of the Judgment. He, she or they are expected to act promptly, consistent with taking a county court judgment against them seriously and to avoid prejudice to the claimant, who believes that he, she or they have a valid judgment and may be spending time and money on considering how to enforce that judgment.
In the case in question, also summarised here in the Law Society Gazette, the applicant had delayed 18 months in applying to set aside judgment. This very lengthy delay was based on the claim that the defendant’s mental health issues had caused the delay. That argument was initially accepted by the lower courts who accepted it based on a discretion in the relevant CPR rule (Rule 39), in turn, no doubt linked with the overriding objective and the defendant’s apparent ill health.
The case reached the Court of Appeal, which overturned the ruling. Firstly, that court found that whilst the defendant was on the one hand perhaps enduring some mental health issues, he was at the same time able to make other applications to the court on different issues, so he wasn’t out of action per se. Also, in pure legal terms, the court found that the lower Judge did not have the ability, under the wording of CPR 39, to exercise discretion unless the defendant had satisfied other tests first, which he couldn’t.
The upshot of the above is that whilst the overriding objective is a good thing, any litigant and especially a litigant in person, should not believe that it can be used as a way of pleading ignorance of the rules or otherwise fully or partially ignoring them. It also demonstrates that civil cases are technical, in terms of rules and law, and that it remains best to seek legal advice wherever possible.
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