Judges, fairness and litigants in person

• Author: Evan Bell
• Position: Master, Queen's Bench and Matrimonial Divisions, Court of Judicature for Northern Ireland
• Pages: 1-45

2010] Litigants in Person 1

JUDGES, FAIRNESS AND

LITIGANTS IN PERSON

EVAN BELL*

INTRODUCTION

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

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* 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

(CanLII).

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

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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.

I. COMMON CHARACTERISTICS OF

SELF-REPRESENTED LITIGANTS

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

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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.

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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

matter.19

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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).