‘An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence top be extended to the litigant in person.’

‘An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence top be extended to the litigant in person.’

17th February 2013

Increasingly, parties are choosing to act in person in civil proceedings. This is a trend that is likely to continue given impending legal aid cuts, due April 2013, and likely to expand exponentially should the Small Claims Track limit be increased to £10,000 or £15,000, as has been rumoured.

Practitioners, and their paying clients, will be familiar with the frustration felt at the, sometimes seemingly excessive, leniency Judges can show towards people acting for themselves. This can lead to increased costs for clients who choose to instruct solicitors, which can itself lead to problems where the reason the person is representing themselves is an economic one; where a party cannot afford to pay for a solicitor to represent them, they will often be unable to pay the other side’s legal costs if they lose.


However, practitioners and their clients should be comforted by the recent Court of Appeal finding in the case of Tinkler and Another v Elliott [2012] EWCA Civ 1289.

The case concerned a long running dispute between the Defendant and his former employer. The appeal centred on a decision made pursuant to CPR 39.3(5) to allow an application by the Defendant to set aside a judgment entered against him at a trial for which he did not attend.

The test the Court had to apply was three fold. To grant the application, it had to find that the applicant;

(a) acted promptly when he found that the court had exercised its power … to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) had a reasonable prospect of success at the trial.


Between the trial and the time the application was made, a period of 20 months had passed. The Claimant submitted that this period could in no way be characterised as prompt. The Defendant attributed this delay to two issues; his mental health and his ignorance of the fact that he could apply to have the judgment set aside.

The judge who heard the application determined that he was at a disadvantage due to his mental health and also due to his acting in person. She therefore found this was a ‘special case’ and she allowed the application despite the long delay.

On appeal, the Court found that whilst there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness, they would only operate close to the margins. The Court stated 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’ and noted that ‘on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence.’

The Judge went on to state that ‘even if one factors in (the Defendant’s) health problems, the evidence shows that between April and July 2010 he was active in this litigation. The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far.’

Accordingly, the Court found that it was not open to the original Judge to find that the Defendant had acted promptly in making his application and his application must therefore be dismissed.

Whilst solicitors and their clients may take comfort from this judgment, it should also serve as a warning to would be litigants in person. According to paragraph 7 pf the judgment, ‘On 27 August 2009 a bankruptcy order was made against (the Defendant) following his failure to satisfy various orders for costs in this litigation.’ If the Courts are to be less lenient moving forward, litigants need to be aware of their costs liabilities; they may have not incurred their own legal fees, but that does not prevent them having to pay the other side’s costs if they lose.