Appeal judges have advised that courts must step in if litigants in person are mistakenly pursuing the wrong case. In Mervyn v BW Controls Ltd the Court of Appeal ruled that, in cases where at least one party is unrepresented, judges should intervene to clarify issues which arise on pleadings and confirm which claims have been conceded.

The ruling followed an unsuccessful claim for unfair dismissal by administrator Marion Mervyn. The Court of Appeal found she had advanced the wrong case, remitting a constructive dismissal claim for rehearing.

The case raised a wider point about whether judges should ‘step into the arena’ to assist unrepresented litigants, and the extent of help offered to formulate and present their cases.

Lord Justice Bean agreed it was good practice for tribunals to consider at the start of a hearing, where at least one party has no lawyer, whether issues drawn up at a case management conference reflect the points in dispute. He said: ‘I do not think, with respect, that it was enough for the tribunal simply to ask at the start of the substantive hearing whether the parties confirmed the previous list of issues.

‘It would not have amounted to a "step into the factual and evidential arena" for the tribunal to have said that it seemed to them that there was an issue as to whether Ms Mervyn has been dismissed or had resigned.’

The employment appeal tribunal had granted permission to appeal on the basis the outcome was ‘unjust’, despite having dismissed the case. The judge said the case raised issues about extent to which litigants in person should be helped and given special allowances.

The court heard that in her claim form, Mervyn had ticked the box next to the words ‘I was unfairly dismissed (including constructive dismissal)’. Her attached particulars of claim included allegations ‘which to any employment lawyer would seem to indicate a case of constructive dismissal’.

Mervyn said her first case management hearing, conducted by telephone, ‘went too fast’ and was confusing. She continued to maintain she was ‘dismissed’, and the employment tribunal subsequently found her complaint of unfair dismissal failed.

At the appeal tribunal, the judge noted that judges must be ‘careful not to invent a case for a litigant’ but said tribunals have a duty to ensure a litigant in person understands the nature of their claim. Where an LiP has decided not to advance a claim, the tribunal ‘should be confident [they have] done so advertently’.

In the Court of Appeal, Paul Strelitz, for Mervyn, argued the employment tribunal should have recognised that the distinction between a dismissal and constructive dismissal would be a confusing for a litigant in person. He said the tribunal judge should have ‘taken more care’ in the telephone hearing.

Mervyn's former employer argued that a claimant’s case was not what her lawyers (or a judge) may want it to be or think it should or could be but ‘what the claimant asserts it to be’.