Litigants in Person and Their Difficulties in Adducing Evidence: A Study of Small Claims in an English County Court
| Author | Paul Lewis |
| DOI | 10.1350/ijep.2006.11.1.24 |
| Published date | 01 February 2007 |
| Date | 01 February 2007 |
| Subject Matter | Article |
LITIGANTS IN PERSON: A STUDY OF SMALL CLAIMS IN AN ENGLISH COUNTY COURT
Litigants in person and
their difficulties in
adducing evidence: a
studyofsmallclaimsin
an English county court
By Paul Lewis*
Senior Lecturer in Law, Leeds University Business School, University
of Leeds
Abstract The literature suggests that litigants in person may be disadvantaged
by an inability to adduce adequate evidence. This article reports an observa-
tional study investigating how 66 litigants in person fared when pursuing their
cases in the small claims track of a county court in England. The research found
that some litigants were unable to adduce adequate evidence and that the
judges experienced difficulty in resolving the problem. In other cases evidential
difficulties were successfully addressed, mostly by means of adjournment.
Parties often showed only a limited understanding of the evidential require-
ments. The study demonstrates that litigants in person have a need for legal
advice and education to enable them to operate effectively within the legal
process and to secure a fair trial in accordance with the European Convention
on Human Rights. Cases alleging breach of the implied term of reasonable care
and skill in contracts for services emerged as a particular problem and there
may be an argument for law reform.
1. Aims, scope and methodology
cademic research and commentary and official reviews both suggest that
litigants in person suffer disadvantages in their conduct of litigation.
The present study explores this thesis in a small claims context. The
principal aim of the research was to test the hypothesis that litigants in person in
24 (2007) 11 E&P 24–48 E & P
A
* Email: pl@lubs.leeds.ac.uk. I am indebted to the Editor and two anonymous referees for their
helpful comments and suggestions. Any remaining flaws are solely my responsibility.
small claims proceedings suffer disadvantage as a result of their inability to
adduce adequate evidence. The specific research questions were as follows:
•Did litigants in person experience difficulties in adducing evidence?
•If so, what were the causes of these difficulties?
•Did the difficulties cause disadvantage to litigants in person?
Before turning to the study’s findings, it is necessary to clarify the scope of the
research and to explain its methodology. It is crucial, first, to define the meaning
of ‘litigant in person’ and to outline the reasons for their widely assumed disad-
vantage in civil litigation. This is the context for undertaking the present study’s
observational approach to a sample of cases in the small claims track of one
English county court.
Litigant in person
Historically, a litigant in person has been seen as a natural legal person repre-
senting himself or herself in a court or tribunal. Under earlier legislation
governing the costs that could be claimed by a litigant in person, it was held that a
body corporate could not be a litigant in person.1The Civil Procedure Rules 1998,2
however, in Part 48 which deals with costs, introduce a wider definition which
broadly equates with the idea of self-representation.3‘Litigant in person’ includes
corporations which act without a legal representative (typically through a
member of staff, who may also be a director). This is the definition adopted for the
purposes of the present research and applied to both claimants and defendants.4
The disadvantage thesis
The thesis that the litigant in person is disadvantaged has been presented in
various contexts, including in relation to tribunals, where the idea that people
can, and perhaps should, represent themselves is a principle on which the
procedure itself is based.5The argument runs that, even in these informal legal
procedures, the litigant in person is at a disadvantage if not represented by a legal
professional or other specialist. Moreover, that disadvantage is argued to be
greater where the opposing party has professional legal representation or other
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 25
LITIGANTS IN PERSON: A STUDY OF SMALL CLAIMS IN AN ENGLISH COUNTY COURT
1Jonathan Alexander Ltd vProctor The Times (3 January 1996), CA. As a result of the Litigants in Person
(Costs and Expenses) Act 1975 such individuals became entitled to claim the costs of their
preparation.
2 SI 1998 No. 3132 (hereafter CPR).
3 CPR r. 48.6.
4 The only exception is that if the non-lawyer representative came from outside the organisation,
e.g. a management consultant, the research would treat this as lay rather than self-representation.
5 This principle was reaffirmed in a major report on tribunals in 2001: Sir Andrew Leggatt, Tribunals
for Users: One System, One Service (Lord Chancellor’s Department: London, 2001).
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