Judges, fairness and litigants in person

AuthorEvan Bell
PositionMaster, Queen's Bench and Matrimonial Divisions, Court of Judicature for Northern Ireland
2010] Litigants in Person 1
Trying cases in which a party represents himself “can be
amongst the more difficult judicial tasks”.1 Judges who preside at
trials where one party is self-represented are often faced with
continuous challenges, the most vexing of which is how to ensure
a fair hearing in the circumstances.2 The court must be sensitive
to the problems facing personal litigants, some of whom may be
lacking in confidence, unassertive, inarticulate and daunted at the
prospect of appearing for the first time in an unfamiliar setting,3
and others of whom are obsessive litigants, determined to leave
no procedural stone unturned.4
Self-represented parties are facing courts today with “an
ever increasing frequency”.5 While the right to represent oneself
is fundamental, the presence of personal litigants in increasing
numbers creates a problem for the courts because the contribution
of most litigants in person in the preparation and conduct of their
cases is not of the same standard as that of counsel. Litigation
involving self-represented litigants is therefore usually less
efficiently conducted and tends to be prolonged. Consequently,
the costs for opposing litigants are increased and the drain upon
* Master, Queen’s Bench and Matrimonial Divisions, Court of Judicature for
Northern Ireland.
1 Williams v. Lemas and Anor [2009] E.W.C.A. Civ. 360. The Chief Justice of
Canada has stated that self-represented litigants “impose a burden on courts”,
leading to judges being “stressed and burned out”: “The Challenges We Face”,
Speech by Beverley McLachlin, Toronto, the 8th March 2007.
2 Director of Child and Family Services (Man.) v. J.A. [2006] M.B.C.A. 44
3 R (on the application of Dirisu) v. Immigration Appeal Tribunal [2001]
E.W.H.C. Admin. 970.
4 “Review of the Legal Year 2002 – 2003”, Court of Appeal, Civil Division.
5 Baziuk v. BDO Dunwoody Ward Mallette (1997) 13 C.P.C. (4th) 156 (Ont.
Gen. Div.). The reasons underlying this trend are varied: withdrawal of legal
insurance, ineligibility for legal aid, impecuniousness, and, in some cases,
believing they can present their case better than counsel.
Judicial Studies Institute Journal [2010:1
court resources is considerable.6 The difficulties presented by
self-represented litigants are a result of their entering an arena
where adversarial litigation is designed to be conducted by
persons with professional skills. In the absence of competent legal
representation, the court does not receive the assistance that it
ought in relation to questions of law and fact, and a burden is
placed upon it to assist the litigants.7
This article draws on jurisprudence from a number of
jurisdictions and examines the principles that judges apply when
self-represented litigants conduct litigation. It then examines how
these principles are outworked in practical terms in particular
aspects of the litigation process.
A. Lack of Knowledge
The most common characteristic of self-represented
litigants is a lack of legal knowledge. Litigants will usually not
understand procedural rules or technical rules of evidence.
This creates a number of difficulties. First, it is common for
personal litigants to believe that courts have powers which they
simply do not possess.8 Secondly, personal litigants may fail to
distinguish between different procedural tools, for example
requests for particulars and interrogatories, and may seek to use
one when another is appropriate.9 Thirdly, because the law may
appear “complicated and difficult”10 to personal litigants, they
may make applications which are “wholly misconceived”.11
6 Cachia v. Hanes [1994] H.C.A. 14.
7 Kenny v. Ritter [2009] S.A.S.C. 139.
8 Re W (Permission to Appeal) [2007] E.W.C.A. Civ. 786. Many personal
litigants incorrectly consider courts to have the power to right what the litigants
perceive to be past wrongs and to give them a hearing on the merits which they
crave: S v. S [2006] E.W.C.A. Civ. 1617.
9 Cabot Investment Ltd. v. Smith t/a French Tarts Patisserie [1998] E.W.C.A.
Civ. 1100.
10 Perfect Pizza Ltd. v. Kaima [1997] E.W.C.A. Civ. 2185.
11 Arora (t/a Practice Disposal Agency) v. Joseph (t/a Stuart Joseph & Co)
[1997] E.W.C.A. Civ. 2093.
2010] Litigants in Person 3
Fourthly, litigants may seek to rely on legislation which does not
exist and, even if it had existed, would not have helped them.12
Such difficulties are not, of course, universal. Some
personal litigants may advance their cases with considerable skill
because of a professional legal background13 and, even lacking
such a background, self-represented litigants may present their
submissions clearly and cogently, with a complete grasp of all the
complications of the case.14
B. Lack of Objectivity
A second common characteristic is that self-represented
litigants may lack objectivity. Their submissions may not be
entirely rational but rather “diffuse, confused and overlaid with an
enormous sense of injustice” which extends to anyone connected
with the case, including the judiciary.15 Indeed they may attribute
every forensic defeat to the bias of the court, and, in particular, to
a bias against personal litigants.16 A personal litigant is often
disadvantaged through being unable dispassionately to assess and
present his case in the same manner as opposing counsel.17
This “inability to see his cause other than subjectively”18 is a
more profound difficulty than the frequent one of being a person
at risk of losing his livelihood, who has his mind in such a
muddle that a simple case can seem grotesquely complicated in
such a way that he is unable to concentrate on the points that
12 James v. Puglia [1997] E.W.C.A. Civ. 1051.
13 Re M (children) [2007] E.W.C.A. Civ. 1363; Bryant and another (t/a Bryant
Hamilton & Co) v. Weir Employment Appeal Tribunal UKEAT/0253/04/DM;
Sawyer v. Secretary of State for the Department of Work and Pensions (Job
Centre Plus) Employment Appeal Tribunal UKEAT/0133/08/LA.
14 Parkins v. Mayor and Burgesses of the London Borough of Westminster
[1997] E.W.C.A. Civ. 2170.
15 Forrester Ketley and Co v. Brent [2003] E.W.H.C. 1847 (Pat).
16 Faryab v. Smyth and Another (Court of Appeal (Civil Division), unreported,
27 January 2000).
17 Dietrich v. R [1992] H.C.A. 57.
18 Re B (a child) [2004] E.W.C.A. Civ. 197.
19 Pine v. Law Society (Court of Appeal (Civil Division), unreported, 16
February 2001).

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