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All litigants are equal... but some more so?

17 June 19

Growing numbers of party litigants mean more occasions when courts have to consider the consequences of their failure to comply with procedure rules; and the degree of leniency shown is changing

by Alastair Johnston

Recent case law illustrates how the Scottish courts are striving to strike a fair balance between applying the rules of court to ensure certainty and good order in the administration of justice whilst maintaining access to justice for party litigants. 

As recently as a decade ago, it was not uncommon for party litigants to be exposed to the displeasure of the bench when finding themselves in contradiction of court rules and for their cases to be prejudiced as a result. However, following a shift in focus towards the promotion of access to justice, judicial attitudes towards party litigants have markedly shifted. 

An overcorrection?

In the following years, the pendulum swung in very much the opposite direction. Most court practitioners, and those represented by them, will be familiar with the scenario in which a party litigant has either missed a prescribed deadline or in some other way fallen foul of the rules. These practitioners may similarly have, quite properly, advised clients either to oppose the late lodging of a document or to seek a court order by default, only to find the court exercising its power to relieve the party litigant from their failure. 

Whatever the reasons given by the court for its indulgence, it is often impossible to avoid the impression that the primary consideration in the court’s willingness to exercise its dispensing power is the fact that the offending party is unrepresented. 

Many clients involved in the court process understandably find it unpalatable that in practice one party can be bound by a set of rules, whereas another is given far more leeway simply by virtue of the fact that they are unfamiliar with the process. This inconsistency has also had the potential to undermine the predictability of the court’s decision-making, on which litigators depend in discharging their duties to clients. 

A rebalancing 

A series of recent high-profile decisions have suggested that the judiciary may be increasingly keen to emphasise the limits on the indulgence it is prepared to offer party litigants.

Barton v Wright Hassall LLP, 21 February 2018

In 2018 the Supreme Court considered, in Barton v Wright Hassall LLP [2018] UKSC 12, an English appeal where a party litigant’s claim became time barred as he had failed to serve the claim form via an approved method of service. The party requested that the court relieve him of his failure to carry out service in the prescribed manner. The court at first instance refused this request. 

The Supreme Court determined that the party litigant’s failure related to compliance with court rules governing service. It also identified that there was a distinction in applying sanctions to a party due to a failure to comply with the court rules in general, as compared with a failure to comply with court rules governing service. However, in addition to the consideration of the present circumstances, there were significant dicta concerning the treatment and indulgences afforded to party litigants in general.

In particular, Lord Sumption held that a party litigant’s “lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court”. Accordingly, following this decision, court practitioners eagerly awaited further decisions to clarify whether party litigants would be given greater leeway than their represented counterparts or whether there had indeed been a sea change to this particular area of court practice. 

AW, Applicant, 7 March 2018

In March 2018, in AW, Applicant [2018] CSIH 25, the Inner House of the Court of Session relied on the Supreme Court’s decision in Barton. This was a case where it could reasonably be anticipated that indulgences would formerly have been made by the court considering that the applicant, and prospective appellant, was a party litigant. It may therefore be considered surprising that in this case a court order by default was granted against the applicant in the Sheriff Appeal Court, due to his failure to lodge an appeal print and certain specified documents by an appointed date. Importantly, the default in this instance would fall within the class of default which the court in Barton considered more egregious than a failure to comply with a particular method of service. 

The Inner House refused an application for permission to appeal to the Court of Session. Lady Paton, sitting alone, warned that “the fair balance achieved by the rules of court will inevitably be disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent”. 

Despite having been afforded several opportunities to remedy his defaults, the applicant argued that the rules placed an unfair procedural and cost burden on him. Lady Paton relied on the judgment in Barton, in particular on Lord Sumption’s dicta that “there cannot fairly be one attitude to compliance with rules for represented parties and another for litigants in person, still less a general dispensation for the latter from the need to observe them”.

Whilst the Sheriff Appeal Court had given significant leeway to the applicant it is clear that, following the decision in Barton, the Inner House was prepared to take a stricter approach to compliance with the rules, particularly where previous indulgences had been made.

Garrow v Shaheen, 30 January 2019

The case of Garrow v Shaheen [2019] SAC (Civ) 3 is perhaps the greatest indication of a shift in the bench’s consideration of defaults by a party litigant and is one of the most recent reported Scottish judgments in this area. In Garrow the Sheriff Appeal Court was to consider an appeal of the original sheriff’s refusal to allow a party litigant’s request for a minute of amendment and an expert’s evidence to be received when proper and timely intimation had not been carried out. However, even prior to such consideration the Sheriff Appeal Court demonstrated a shift in attitude towards indulging procedural failings by a party litigant. 

In particular the appellant had failed to lodge various documentation prior to the hearing on the appeal. The appellant moved for matters to be continued so as to allow these documents to be lodged in compliance with the rules. The court refused such relief and proceeded with the appeal hearing as scheduled. Interestingly, the court did not go so far as to grant the respondent’s motion for decree by default, which indicates that some leniency may remain when dealing with party litigants. 

The approach in Garrow is in contrast to AW, Applicant, where only following several indulgences of the party litigant’s default did the court grant an order by default. 

The Sheriff Appeal Court eventually upheld the sheriff’s decision, and relied on both AW, Applicant and Barton in determining that the appellant should not be entitled to greater procedural leeway than a represented party, even if that led to a situation where their case was significantly prejudiced.

Where are we now?

The importance of promoting access to justice has, of course, been underscored throughout the process of court reform in the middle and later part of this decade. This recent more stringent application of the rules to party litigants appears to be being applied in the sheriff court and, in our experience, is being referred to regularly by sheriffs when considering whether to relieve a party litigant from a failure to comply with the rules. That experience suggests that the courts may be going through a process of rebalancing in their attitudes towards party litigants. As can be seen from the cases above, the judiciary will no doubt hesitate to take too strict an approach, which might risk reverting to the bad old days, but a greater emphasis on compliance with the rules appears to be being adopted throughout the judiciary.

Practitioners should therefore not presume that the level of indulgence previously afforded to party litigants will continue. In certain circumstances it may be appropriate to oppose a party litigant’s request to be relieved from a failure to comply with the rules, and the judiciary may consider such opposition in a different light given the evolving case law.

The courts appear to be examining the reason for a default and the circumstances surrounding such default in greater detail, rather than automatically indulging such failures on the basis that the party is a party litigant. However, this shift in the attitude of the judiciary is still evolving and it would be prudent to continue to monitor decisions concerning orders granted in respect of procedural defaults by party litigants so that clients may be properly advised. In particular, whilst it may not be the case that represented parties and party litigants are afforded the same leeway, it is no longer safe to presume that a lower standard of compliance with the rules of court will be applied to party litigants. 

Alastair Johnston is a senior solicitor with Harper Macleod LLP

 

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