There have been two interesting cases this year concerning litigants in person, summary judgment applications, and the Court's ability to dismiss claims that are perceived to be going nowhere.
Summary judgment: In Christie v Mary Ward Legal Centre the Claimant was the tenant under a long lease, but had incurred substantial arrears to her landlord, prompting forfeiture proceedings in 2012. The Claimant instructed the First Defendant solicitors, who engaged the Second Defendant Counsel to advise in writing. That advice was that the property should be sold to pay off the arrears, and thus avoid forfeiture; a sale was completed on 30 July 2023. On 13 July 2019, almost six years later, the Claimant commenced proceedings against both defendants, alleging that she had been badly advised and that an alternative option had been available that would have (i) retained ownership of the property and (ii) avoided various further losses flowing from the sale.
The Defendants applied for strike-out on the basis that the claims were statute barred, with at least some of the loss having been caused before the sale in 2013. The First Defendant also asserted an entitlement to rely upon the advice from Counsel.
The Court rejected the limitation argument, concluding that the starting point was the date that the situation was beyond redemption, rather than the earliest date at which damage had been caused. Here, it was when the Claimant could no longer seek relief from forfeiture, when contracts were exchanged for the sale. It is understood that this determination has been appealed.
Regardless of limitation, the Court found that the solicitors were bound to succeed with strike-out in any event as they were entitled to rely upon the advice from Counsel, even if such advice was negligent and causative of loss. As a result, the Claimant had no real prospect of success. The Claimant duly appealed on both a procedural point and about the substantive decision. The former was rejected, but the latter was successful and the summary judgment quashed.
Whilst it can be a normal part of the solicitor / barrister dynamic to rely on Counsel, it does not absolve the solicitor of all responsibility, especially if the advice is obviously wrong. Much depends upon the solicitors' experience in the relevant field. At the application hearing, the Court deemed the solicitors to be "generalist" and without specialist experience, justifying the decision. However, on appeal there was far more reluctance to reach such an important conclusion within the confines of a summary judgment application, not least when the solicitor was deemed to have held itself out as a housing and debt specialist. As a result, the extent to which advice from Counsel could simply be relied upon was an issue upon which proper evidence would need to be heard.
Separately, the Court warned that the Particulars were badly drafted, required further particularisation, and that the claim would benefit from proper legal advice. However, the Court was willing to at least entertain the Claimant's arguments.
Strike out: In Brem v Clark & Rudd Solicitors, the High Court upheld a decision to strike out a claim on the basis that the litigation could not continue given the manner in which it had been conducted.
The Claimant brought a claim against its solicitors and the sellers following a property purchase. The dispute concerned a truncated garden which the Claimant alleged reduced the value of the property and was not accounted for in the purchase price. The Claimant made allegations of fraud, collusion and professional negligence.
The Claimant had produced two inconsistent and unclear Letters of Claim and Particulars of Claim, but had been given the chance to amend the Particulars, along with being granted two adjournments of a strike out application hearing (resulting in adverse costs) in order to plead the case properly.
On the Claimant's third request for an adjournment, the Judge considered the modest value of the claim, its overall merits and the costs incurred to date, and made a case management decision to strike out the claim instead. This was founded upon the incoherent pleadings, the Claimant's general approach to litigation and the adverse effect on the Court's resources. The claim was already dubious with the Claimant having considerable evidential difficulties in proving the case and the alleged loss. A further adjournment would simply result in increased wasted costs, disproportionate to quantum.
The High Court dismissed the Claimant's resultant appeal, referring to the 'pitiful' state of the pleading despite the numerous opportunities afforded to rectify it. Focus was placed on the importance of the Court's finite resources and the knock on effects of continuous adjournments on other cases. The Claimant had already had its 'third bite at the cherry' and the Judge was therefore entitled to take the view that the litigation was going nowhere.
Comment: The two cases demonstrate the differing approaches that may be taken by the Courts when faced with the complications of dealing with litigants in person.
As we encounter unrepresented claimants with increasing regularity (which trend will likely only continue following the introduction of Fixed Recoverable Costs), there will be a clear temptation for defendants to seek early disposal, especially when faced with poorly drafted or incomprehensible pleadings. However, this route is only going to be suitable in certain circumstances, and it can be expected that we may see some leniency towards litigants in person, which could well be at the expense (financial and otherwise) of professionals and their indemnity insurers. This was certainly the impression given in Christie.
Against that, such patience and tolerance cannot simply be assumed, and could swiftly wear thin. As shown in Brem, the Court retains wide case management discretion, which it can and will exercise in appropriate circumstances. Court resources are already significantly stretched, which is only made worse by poorly pleaded and badly pursued litigation. The overriding objective demands that claims are dealt with fairly, proportionately and in a timely manner. As a result, the Courts will rightly take into account the way in which cases have been conducted, the state of the pleadings, the value of the claim and the costs that have already been incurred, when making decisions on strike-out and summary judgment.
Litigants in person will therefore need to be cautious, taking care to prepare coherent and accurate pleadings at the outset which are supported by appropriate evidence, and avoiding the need for later amendment where at all possible. It can also be expected that the Courts will carry out a careful balancing exercise to determine whether a litigant is permitted to amend its case, with no guarantees of success on either side.
