Litigants in Person

Over the years we have had the dubious pleasure of opposing a number of LiPs at various court costs assessment hearings. As the availability of Legal Aid continues to contract, recoverability of additional liabilities impacts and reduced fixed costs bite, the Courts are recording, as anticipated, significantly increased numbers of LiPs conducting cases.

With an increasing likelihood of facing an LiP, a summary of the key considerations when facing one seems timely. 

Litigants in Person (Costs and Expenses) Act 1975 

Until the the LIP (C&E) Act 1975 a non lawyer had no common law right to costs.

The Act, at Section 1 provides that:

In a County Court, in the Supreme Court or in the House of Lords on appeal from the High Court or the Court of Appeal,

Before the Lands Tribunal or the Lands Tribunal for Northern Ireland, or

In or before any other court or tribunal specified in an order made under this subsection by the Lord Chancellor.

Where any costs of a Litigant in Person are ordered to be paid by any other party to the proceedings or in any other way, there may, subject to rules of court, be allowed on the taxation or other determination of those costs

Sums in respect of any work done, and any expenses and losses incurred, by the Litigant in or in connection with the proceedings to which the order relates.

So who or what exactly is a Litigant in Person? 

There is no statutory definition of an LiP. The term commonly encompasses individuals who wish to represent themselves in legal proceedings but also includes, by virtue of CPR 46.5(6)  

A Company or other Corporation which is acting without a legal representative 

and 

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 19851

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

What costs can they claim?

CPR 46.5 sets out clear restrictions on the basis of the LiP claim. Essentially they can present a claim in two ways: 

A) Where they can prove financial loss ie income lost due to time spent formulating and presenting their case, the extent of their loss and reasonable expenditure. The burden is on the LiP to prove financial loss has been incurred and the extent of it.   

B) Where they cannot prove financial loss, a specified hourly rate x reasonable hours spent. The rate set out in the Cost Practice Direction to CPR 46 is currently £19.00 per hour. 

Note if they elect to claim on a financial loss basis and the loss rate is assessed at below £19 per hour they will only recover the loss rate, not £19.00 per hour as a minimum. They should therefore consider carefully the best approach comparing their actual hourly employment rate against the prevailing hourly rate specified. 

Note also there is nothing in the Rules or Practice Directions which prevents them from presenting a claim for both types, where there have been distinct periods where they can and cannot prove loss. They can also present a bill for LiP costs for part of the proceedings and a part containing their solicitors bill for the period they were on record. We have dealt with a number of instances where a Bill of Costs has included a separate part comprising an LIPs costs prior to them instructing or after de-instructing a legal representative 

The two thirds cap 

In both instances the costs allowed, except in the case of disbursements, cannot exceed two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative. This is based on historical analysis of Solicitors charges which indicate two thirds relate to covering expenditure and one third profit. A party recovering costs from an opponent cannot make a profit on those costs. See also the Indemnity Principle which prevents a party from recovering more in legal costs from an opponent than his own solicitor’s bill to him (for the period when the solicitor was acting).  

The LiP can also recover payments reasonably made by them for legal services relating to the conduct of the proceedings and the costs of obtaining expert assistance in assessing the costs claim. Those legal services must have been provided by specified regulated individuals. These are: 

(a) barrister; 

(b) solicitor; 

(c) Fellow of the Institute of Legal Executives; 

(d) Fellow of the Association of Costs Lawyers; 

(e) law costs draftsman who is a member of the Academy of Experts; 

(f) law costs draftsman who is a member of the Expert Witness Institute. 

You can therefore be presented with an LiP bill which also includes a claim for the fees of  one of the above experts. 

Attendances at Court

An LiP can, in principle, claim for costs attending a hearing as either a Witness or notional solicitor but not both.

Office Overheads 

It is a moot point whether the LiP can recover time spent in posting letters, taking files to court, photocopying documents. Whilst these are not recoverable by a Solicitor that is because they are deemed to be admin/staffing overheads encompassed within his charge rate. The LiP rate is less than one tenth of an average solicitor charge rate and there might therefore be a basis for presenting that argument.

Dealing with an LIP

Your duties to act in the best interests of your client, and to the court are paramount.

However you should not take 'unfair advantage' of an opposing party's lack of legal knowledge where they have not instructed a solicitor. You should not use your professional status or qualification to take 'unfair advantage' of another individual in order to advance your client's interests. See the Law Society Guidance

Never make negative assumptions about the merits of an LiP's case on the basis that they have not obtained representation and are not legally trained. Some LiPs are very court-literate having spent hours researching the system. They may have a legal background or other expertise which equips them for managing the case. They also tend to have very detailed knowledge of the case facts having a personal interest in it and usually go to great length to prepare their case. It is not uncommon for them to raise an unexpected argument.  

Whilst in our experience they can have a lax approach to rules compliance they will usually be given considerable leeway by the Court. They are also not averse to raising any procedural breach or non compliance by an opponent. That is critically important in these post Mitchell days of sanction enforcement and the difficulties securing relief from sanctions.  

Approach them with caution. Do not underestimate them.

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