Two recent decisions of the Court of Appeal have affirmed that the provisions of Civil Procedure Rule 27.11 and 39.3 should be interpreted rigorously. More interesting, however, is the fact that at a time when the courts are likely to see more and more ‘self-representing parties’, the decisions suggest that the mere fact that an individual is unrepresented in the proceedings will not mean that they will attract any special treatment by the courts.
In the first of these decisions, Tinkler and Another v Elliott  EWCA Civ 1289, the unrepresented party was defending a claim for damages and an injunction against him by the organisation for which he had previously worked. The end of the business relationship between the parties had been acrimonious with Mr Elliott making various accusations about the claimant’s working practices. The disputes had been initially compromised by a Tomlin Order which prevented Mr Elliott from repeating his allegations.
However, Mr Elliott made further accusations and a further claim was made against him. This came on for trial on 15 March 2010. Mr Elliott did not attend the trial. Instead, he submitted a medical certificate of unfitness to attend the court but this failed to impress Judge Tetlow who proceeded to grant a permanent injunction and make a general restraint order against him. An appeal against this decision failed, but on 8 December 2011, almost 21 months after the original hearing, Mr Elliott applied pursuant to CPR 39.3 to set it aside and succeeded before Mrs Justice Sharp who found that Mr Elliott had had a good reason for not attending the hearing on 15 March 2010. Although this finding was not challenged on appeal, her decision was not upheld by the appellate tribunal.
In the only judgment given in the appeal court, Lord Justice Maurice Kay said that the issue was ‘promptness’. Under CPR 39.3(3), the court had no discretion to set aside a decision taken in a party’s absence until the applicant has satisfied the three positive requirements of the rule. The first of these required that ‘he must show, adopting the words of Lord Justice Simon Brown (in the case of Regency Rolls Ltd v Carnall  EWCA Civil 379) that "he has acted with all reasonable celerity in the circumstances". The judge’s approach at that stage is essentially evaluative rather than discretionary.’
Lord Justice Maurice Kay identified that in respect of ‘promptness’, Mr Elliott had relied on two issues: poor mental health and ‘his ignorance as a litigant in person of the availability of an application to set aside’. He dealt with the first issue shortly, noting that during the relevant period Mr Elliott could not be said to have been incapable of functioning as a litigant in person throughout the relevant period. However, it is his remarks on the second issue that are of more general relevance.
Lord Justice Maurice Kay opined that while ‘there may be facts and circumstances in relation to a litigant in person that may go to an assessment of promptness... they will only operate close to the margins’. He added that ‘an opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person’. Lack of understanding of procedures ‘does not entitle him to extra indulgence’. Mrs Justice Sharp had gone wrong in regarding this to be a ‘special case on its facts’ when it could only be so regarded ‘if one goes too far in making allowances for a litigant in person’.
These may appear to be strong words which swim against a tide running strongly in favour of the court doing all in its power to ensure that a self-representing party has every chance to fully deploy their case and have it dealt with on its merits. But support for this proposition comes from a differently constituted appeal court in the decision handed down on 23 October 2012 in Fernandes v Kenny & Others reported on Lawtel. In this case, an unrepresented landlord applied to set aside a judgment for damages in respect of a deposit which had not been protected in an authorised deposit scheme, entered against him at a small claim hearing which he failed to attend. He failed in his application before a district judge and on a first appeal before the circuit judge who held that there had been no discretion to hear the application as it was made out of time.
A strong Court of Appeal (Lady Justice Hallett, Lord Justice Etherton and Dame Janet Smith) held that the circuit judge had overlooked the fact that CPR3.1 allowed the court to extend the time limit specified in CPR27.11(2). It found, however, that the lower courts had been right to conclude that the landlord had had no good reason for failing to attend the small claim hearing.
The court had to approach the ‘issue in the round, taking into account the merits of a defence in order to moderate the rejection of an application to set aside that might give rise to injustice or infringe [European Convention rights]’. It concluded that as there was such a degree of conflict in the defence filed by the self-representing party, and as he had not produced any witness statement, and the evidence relied upon by him was profoundly unsatisfactory, it was impossible to say that the circuit judge had been wrong to conclude that the landlord had failed to satisfy the requirements of 27.11(3) (a).
Even without the full judgment, it is clear that little allowance was offered the applicant for the fact that he was self-representing, despite the fact that if the original decision was made at a time when the Localism Act amendments to section 214 of the Housing Act 2004 had not yet come into force the original decision at the small claims hearing was probably legally unsustainable.
In fact, what these decisions emphasise is that, while article 6 rights of a self-representing party must be respected and a court must be vigilant to ensure that the party understands the process, the litigant will still stand or fall on the quality of his own understanding of the law and the conduct of his case. I would suggest that whatever comfort this might offer to the opponent of the self representing party the stance is in fact not surprising. It is merely a reaffirmation of the fact that the court should not and will not ‘enter the arena’ to give one party advice or assistance to get his case in order.
District Judge Graham Green sits at Medway County Court