Litigants in person costs awards

It's a little known thing that under rule 46.5 of the Civil Procedure Rules (which do apply to family proceedings - see FPR 28.2) the court may award a litigant in person their costs. This has been the case for over a year now, and it isn't used much in civil proceedings and I anticipate has rarely if ever been used in family cases.

It's not very long so I set out 46.5 in full below.

(1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.

(2) The costs allowed under this rule will not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.

(3) The litigant in person shall be allowed –

(a) costs for the same categories of –

(i) work; and

(ii) disbursements,

which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf;

(b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and

(c) the costs of obtaining expert assistance in assessing the costs claim.

(4) The amount of costs to be allowed to the litigant in person for any item of work claimed will be –

(a) where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work; or

(b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46.

(5) A litigant who is allowed costs for attending at court to conduct the case is not entitled to a witness allowance in respect of such attendance in addition to those costs.

(6) For the purposes of this rule, a litigant in person includes –

(a) a company or other corporation which is acting without a legal representative; and

(b) any of the following who acts in person (except where any such person is represented by a firm in which that person is a partner) –

(i) a barrister;

(ii) a solicitor;

(iii) a solicitor’s employee;

(iv) a manager of a body recognised under section 9 of the Administration of Justice Act 1985; or

(v) a person who, for the purposes of the 2007 Act, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act).

So, the first thing to say is that this doesn't even kick into action unless the court has decided that it is right for a costs order to be made - and in family proceedings (unlike civil, from whence this rule emanates) this will be a rare occurrence.

This is not the place for an analysis of exactly when costs orders are likely to be made, but generally speaking a costs order is only likely to be made if there has been some pretty heinous conduct on the part of the person  paying, which makes it right for the court to order them to bear the costs of the other party.

If you are in that territory however, the fact that one party is a litigant in person does not protect the other party against a costs order, and nor does it mean the litigant in person can recover nothing for their time.

The amount awarded cannot be more than two thirds of the amount that would have been awarded if a lawyer had been involved. Note the wording is amount not rate, and as many litigants who once had lawyers know - a few hours of lawyer's time may add up to a substantial sum. 2/3 of a substantial sum is not to be sniffed at.

Disbursements (things like court fees) may be recovered in full (where an order is made).

The sum may include sums reasonably spent on "legal services" (query whether this includes unregulated "legal services" provided by professional mckenzie friends as "legal services" is not defined in the CPR and appears to be broader than conduct of litigation).

The sum is to be calculated either by reference to actual financial loss (e.g. I took two days off work to prepare the case, I lost £400 in earnings in total), or, if there is no provable financial loss by reference to PD46 CPR at a rate of £19 p/h.

Evidence in support of actual financial loss must be served not less than 24 hours before the hearing (or with notice of commencement of detailed assessment if not summarily assessed).

So : beware naughty lawyers, and don't forget litigants in person - this might, just might, be worth keeping an eye on.

Litigants in Person – some numbers

A while ago I made a Freedom of Information Act request to get some stats from the court service about litigants in person in private law matters. The request and the response I received can be found here, and my summary of the figures is here. It shows the position as at end Jun 2011. I've now made an updating request and have received the new set of stats as at end Sept 2011. The response can be found here.

Of course this is two snapshots only a quarter apart and there are limitations to how much one can read into the figures. But its interesting to do a little analysis of what the available material tells us, because the whizzy Open Justice website is silent on private law proceedings and the stats published on the Justice website do not refer to the numbers of litigants in person. Quel surprise. (I suppose the domain www.selectivelyopenjustice.gov.uk was too unwieldy.)

I wanted to compare the two sets of figures for two reasons : to see if they can tell us anything about any fluctuations in the numbers of litigants in person and to see if they can tell us anything about the impact of litigants in person on case duration. I'm no statistician so I'd welcome input from those with the ability to analyse these figures properly, but here goes.

As at 30 June 2011 1 in 5 of all private law children cases at all tiers of courts involved one or more LiP applicant (20%). This was unchanged as at 30 Sept 2011.

As at 30 June 2011 43% of all private law children cases across all tiers of courts involved one or more LiP respondent. This rose to 48% by 30 September. There were increases in the proportion of unrepresented respondents across all tiers of court

The mean and median case duration of private law cases dropped markedly across all tiers of court between June and September 2011 (e.g. mean case duration in the County Court went from 63 weeks to 44 weeks). Taken at face value this suggests an increase in efficiency, perhaps because of increased capacity to deal with cases as numbers drop - but there is an explanation provided in the narrative to the response which makes clear that this is as a result of changes to the way data is collected. It appears that the most recent figures are the more reliable, as previously cases were counted as "outstanding" for the purposes of case duration if they had been left open on the case management system, even if they were not in fact live. This also accounts to some extent to a drop in the number of cases outstanding. However, the most recent stats available on the Justice website confirm that the number of such cases issued is also on a downward incline.

The most recent figures show that in the FPC cases where either all Applicants or all Respondents were unrepresented cases a shorter mean duration than those involving lawyers (this is in common with the June stats). However, cases where all Applicants were represented had the same case duration as those where no Applicant was represented, whereas cases where only some Applicants were represented took longer (this category must be comprised entirely of cases where there are cross or multiple applications). And cases where only some Respondents were represented took the longest (this category must be comprised entirely of cases involving more than one Respondent), with cases where "all" Respondents were represented (including those where there is just one Respondent) showing a lower mean duration (but still higher than cases involving no represented respondents). To me, this tends to support the proposition that more complex multi-handed cases take longer, and that they take longer still where there are litigants in person involved.

In the County Court, which is the tier of court with the greatest statistical base, cases involving no represented Applicants and no represented Respondents took longer on average (mean) than those involving either all represented Applicants or all represented Respondents. This was a feature of the June 2011 figures. As with the FPC stats the tranche of cases where some Applicants were represented (by their nature multi-handers) had the longest average duration (but cases where some Respondents were represented were the quickest by mean, but comparable to of equal average duration to the cases with no represented Respondents by median). Again, the discrepant patterns as between mean and median in the County Court reflect, I think, the small numbers of intractable cases, which may be of unusually long duration, and which may involve more than two parties because children have been made parties) and these throw the stats askew.

Figures for the High Court are difficult to interpret as the numbers are quite low and a small change produces a massive shift by proportion. What was notable was that in 65% of private law children applications pending in the High Court as at 30 September involved no Respondent was represented (and in almost 70% of cases at least one Respondent was unrepresented - a 17% rise since June).

So, what does it tell us overall? Well it hints to me of a crisis on the horizon. The proportion of Litigants in person is rising sharply. We can't cross reference the separate tables to identify the proportion of cases where all parties are unrepresented if 1 in 5 cases involves unrepresented Applicants and approaching 50% of cases involved unrepresented Respondents it's likely to be a material proportion (which certainly chimes with my experience). It would be extremely illuminating to see average case duration for cases involving no represented party.

These figures also suggest that those cases that take longer are often those that involve litigants in person. It follows that an increase in the numbers of the unrepresented such as is inevitable if the Legal Aid, Sentencing and Punishment of Offenders Bill is passed, is bound to result in an increase in case duration - because of course the removal of private law cases in general from the scope of legal aid will be indiscriminate - whilst a proportion of those unrepresented parties represented in the stats at present will be those who genuinely do not need representation (for example because their case is straightforward or because they do not contest the application), the proportion of those who would benefit from representation but who cannot access it is bound to increase if legal aid is withdrawn from this area of work.

Whilst the Government is very keen on "transparency" (in the form of a few selective statistics) where it concerns political hot potatoes like care proceedings (particularly where such transparency can be used as a stick with which to beat the judiciary), private law proceedings are as ever, the forgotten sibling. We know that this Government has a penchant for trivialising private law disputes, but of course an explosion in the numbers of the self representing in private law proceedings, which far outnumber the volume of public law proceedings, will have a knock on effect on the capacity of the courts to manage public law proceedings, which the Government purports to be much more anxious about.

This is the kind of thing that the Government should be scrutinising anxiously, particularly given the acknowledgments in its own Impact Assessments and Green Paper as to the lack of research into the impact of an upsurge in the numbers of litigants in person upon the operation of Her Majesty's Courts and Tribunals Service.

Focus on my good side

Argh. Off to the Law Society in a minute to film a videocast (that's a film to you plebs) about Litigants in Person, aimed at solicitors. Will be surrounded by the great and the good in the shape of Andrew Hopper QC and Mr Justice Ryder. I am not a fan of being filmed, especially when I am the greenest of the lot.

I will post a link to the video cast when available, and to the Law Society's Practice Note on Litigants in Person when published.