Unrepresented Claimants Face Difficulties in Personal Injury Claims

As the Civil Liability Bill continues its progress towards becoming an Act of Parliament, it is looking ever more likely that a large swathe of injured people will be steered towards representing themselves in their personal injury claims.

However, “litigants in person”, as they are known, face a number of risks and pitfalls when pursuing their cases without a lawyer, sadly highlighted by two recent Court of Appeal decisions.

In Ogiehor v Belinfantie, the Claimant in a personal injury claim was ordered to pay £10,000 to the Defendant in payment of their costs, and told that if he did not do so within 6 months his entire personal injury claim would be struck out.

The facts of the matter were that Mr Ogiehor had received a letter from the Defendant which contained an offer of settlement and was marked “without prejudice”. This meant the contents of the letter should not have been told to the judge, and Mr Ogiehor was warned not to do so by the Defendant’s barrister and by the judge hearing the trial.

However, the letter also contained warnings that Mr Ogiehor could go to jail for fraud if he lost at trial. Mr Ogiehor thought the contents of the letter were evidence of being blackmailed and bullied by the Defendant’s legal representatives and wanted to bring this to the attention of the judge. The judge, now aware that an offer of settlement had been made and the amount of that offer, felt he could no longer give an independent view on the amount of compensation to award if the Claimant’s case won. The judge therefore stopped the trial, and decided that this was the fault of Mr Ogiehor. Accordingly, Mr Ogiehor was ordered to pay the Defendant’s costs in the sum of £10,000.

The Court of Appeal upheld this decision. The Court of Appeal acknowledged that the Claimant was representing himself and could not be expected to have the same knowledge and experience as a trained legal professional. However, the Court concluded that while litigants in person are afforded much help and leeway by Courts when acting on their own, litigants in person are still required to comply with all of the usual rules and Court Orders that legal professionals must abide by. Essentially, not knowing the Civil Procedure Rules – which on their own comprise over 200 sections and Practice Directions – is not an excuse for not complying with them.

A similar conclusion can be drawn from the case of Alexander v Willow Court Management Company (1985) Ltd, where a failure to make a proper application to the Court, with supportive evidence, led to the appellant’s entire appeal being dismissed.

In this case, Mrs Alexander wrote to the Court asking that her hearing at Oxford County Court be moved to a different venue. Mrs Alexander, in the mistaken belief that her request that the hearing be moved to a different Court had been successful, failed to attend the hearing and accordingly the judge dismissed her case. The Court of Appeal upheld the judge’s decision, finding that Mrs Alexander’s letters and emails did not provide evidence in support of her request to change the venue of the hearing, nor did they constitute a valid application for an adjournment of the hearing. Her appeal – and thus her entire case – failed.

The result of both cases would seem harsh on Mr Ogiehor and Mrs Alexander; one was required to pay £10,000, and both of their cases essentially failed as a result of their lack of knowledge of the rules, protocols, practice directions and Orders that lawyers work with day-in, day-out. While the Courts will provide assistance and leeway, litigants in person cannot realistically be expected to have the same knowledge and understanding as a legal professional. That is the standard litigants in person are required to meet however, and it is all too easy to fail to meet that standard without even realising it.

These two Court of Appeal decisions are a sad reminder of the difficulties – not to mention the terrible consequences – litigants in person can and will face in future. As the Civil Liability Act, once implemented, is expected to encourage more and more injured people to forego using a specialist lawyer and to represent themselves against large insurance companies instead, cases such as Mr Ogiehor’s and Mrs Alexander’s may sadly become even more common.