Navigating legal matters can be daunting, especially when one finds themselves without the guidance of a qualified legal representative. In legal disputes, such individuals are known as litigants in person (LIPs). But what exactly does it mean to be a litigant in person, and how does their presence impact the tribunal process?
What is a litigant in person?
A litigant in person (LIP) is an unrepresented party or a party whose representative is not legally qualified.
It is common for individuals to bring employment tribunal claims on their own behalf as you do not need to be legally represented to bring a claim in the employment tribunal. Therefore, it is helpful to understand how this may affect the tribunal process and how best to deal with an opposing litigant in person.
Potential effects of a litigant in person on tribunal proceedings
Inevitably a tribunal claim will not proceed in the same way if a litigant in person is involved compared to when both parties are legally represented.
The two main implications are time and cost.
Time
A LIP is more likely to engage in more protracted correspondence, for example, repeating information and providing unnecessary documentation.
Hearings involving LIPs tend to take longer as each stage of the tribunal process must be explained, and the LIP may not know how to effectively call and examine witnesses and make submissions. Usually requests for further and better particulars are more common.
Cost
A respondent is likely to incur additional costs when the claimant is a LIP because the respondent’s legal representative is required to sift through more correspondence and guide the LIP through the process to some extent.
There are very limited circumstances when a tribunal will award a costs order against a LIP and in any event such orders are even more difficult to enforce.
Opposing party’s obligations towards a litigant in person
Although the opposing party and their legal representative do not owe a duty of care towards a LIP, the party’s legal representative must comply with their professional duties.
Solicitors owe a duty to the tribunal to further the ‘overriding objective’. This requires legal representatives to cooperate with LIPs and assist them to the extent that this aids the administration of justice and does not conflict with the duties owed to their client.
Tribunal’s obligations towards a litigant in person
The tribunal must, as far as practicable, ensure that both parties are on an equal footing by offering guidance and assistance to an inexperienced LIP without demonstrating any bias. This can be a difficult balancing exercise for the tribunal.
The level of any assistance offered to a LIP is at the tribunal’s discretion, taking into account the circumstances of the case. However, tribunals must be careful not to overstep the mark and adopt an inquisitorial approach.
For example, in the case of East of England Ambulance Service NHS Trust v Sanders, the tribunal was wrong to investigate the claimant’s mental health condition when determining the issue of disability, as this was biased in favour of the LIP.
Recent case – Moustache v Chelsea and Westminster NHS Foundation Trust
The EAT recently considered a case where the tribunal failed to consider one of the claims that a litigant in person intended to bring because the claim in question was not included on the agreed list of issues. The EAT allowed Mrs Moustache’s appeal on the ground that it should have been obvious to the tribunal and the respondent that she intended to bring the additional claim as a reference to it was made in both her claim form and witness statement.
The EAT also stated that it “may have been appropriate” for the respondent to have informed the tribunal of this potential claim in the event that the tribunal did not identify the claim by the final hearing.
Although this recent case does not establish a new precedent, it draws attention to the duties that parties and tribunals both have towards litigants in person.
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Debbie Coyne
Employment Law Senior Associate Solicitor
Debbie is a Senior Associate in the Employment team who regularly attends our offices in Altrincham, Warrington and Chester. She is recommended in The Legal 500 and has been named as a Rising Star.
