Tinkler & Anr v Elliott 2012 EWCA Civ 1289
Elhag v Swift Freights UK Ltd 14.2.2013 (Edmonton County Court)
Of interest to individuals and lawyers
More and more individuals are choosing or being forced to represent themselves (litigants in person). Often choosing because of the perceived disproportionate costs of lawyers or being forced to do so due to a lack of funds.
Lawyers will be well aware of this new reality. They will also need to be aware of their responsibilities in court and their duty to act in the best interests of their client – that includes ensuring individuals do not get undue leniency or indulgence because of a lack of legal representation.
In the Tinkler case (Court of Appeal), Mr Elliot was an ex employee of Mr Tinkler’s company. There was a long running legal battle between the parties resulting, inter alia, Mr Elliot being subject to a civil restraint order, being imprisoned for 3 months for contempt, and multiple applications being dismissed on the grounds of abuse of process. Legal battles still continued. Mr Elliott then failed to attend a court hearing at which judgment was given against him in his absence.
On Mr Elliott’s application to set aside that judgment, the key issue was whether Mr Elliott’s application was made promptly. Mr Elliott succeeded in the High Court: in the interests of the overriding objective, 1) his mental health challenges and 2) the fact that he was representing himself (and thereby not totally au fait with court procedure and his right to apply for a set aside) meant it could be said he acted promptly.
In the Elhag case (County Court), Swift Freights was a business dealing with the international transportation of goods. Mr Elhag was a customer, sending goods to Ethiopia. The issue between them revolved around what the actual terms of the contract were regarding delivery and payment and what constituted a reasonable time within which to deliver the goods.
At the trial, a Swift Freights director attended as its only witness with evidence in hand having failed to serve or file any evidence beforehand in accordance with court directions. The director and Mr Elhag (my client) were positively amicable with each other – their continuing relationship was apparent. Nevertheless, on satisfying Mr Elhag on my intentions, I applied for Swift Freight’s Defence and Counterclaim to be struck out or for none of their evidence to be allowed to be produced on the basis that:
- court order flouted;
- Mr Elhag arranged evidence to be filed and has attended court all the way from Ethiopia;
- no notice had been given of the evidence being produced; fairness of the trial process prejudiced;
- in any event, recent Court of Appeal authority (the Tinkler case) directs that individuals (LiP) ought not to be given undue indulgence.
In the Tinkler case, The CoA overturned the High Court’s decision. It was clear that Mr Elliot’s mental health concerns were not alone sufficient in supporting a finding of promptness. The question then remained whether the lack of legal representation could provide further support to that issue. The answer was no:
- Unrepresented individuals and the particular challenges that arise from that could only “operate close to the margins”
- Unrepresented individuals cannot expect “excessive” or “extra indulgence”
In the Elhag case, the application succeeded. The trial was to continue without any defence evidence. Swift Freights was allowed to cross examine Mr Elhag (which turned out to be impossible – it’s hard enough cross examining without any evidence as a practiced barrister) and make final submissions (which turned into a list of assertions with no supporting evidence). Mr Elhag’s claim succeeded and the judgment included loss of quite a lot of income, the costs of an international flight and specific performance.
The courts are there to resolve disputes and the parties must be urged to play by the rules – this is a prerequisite to a fair trial. To this end, the CoA decision in Tinkler must be applauded. Many lawyers would surely agree that this decision has been long overdue. The Elhag case proves that County Courts and surely anywhere upwards, the same principle will be applied more generally.
That said, where the margins end and extra indulgence begins clearly leaves room for debate. It is arguable that this decision is particularly relevant where finality of judgments is threatened and should be less applicable, e.g. to case management decisions prior to a trial. Further, that on the facts, Mr Elliot’s case is quite exceptional.
A Word of Warning for Individuals and Lawyers
With the limit on Small Claims Track matters being increased to 10k, there will be an increasing number of individuals representing themselves. This is what the current government wants to see. (The cynic in me wants to remind everyone that access to the court room alone does not amount to access to justice.)
Individuals choosing to represent themselves should take care to comply with court orders – that is not designed to be difficult. If representation cannot be afforded, many lawyers offer a limited service assisting with preparation for a trial. Not forgetting, even in the Small Claims Track, a fixed amount is recoverable for legal assistance towards issuing a claim.
Whether you are a barrister, solicitor (or even an individual), if you find an individual on the other side, you must ensure ignorance of the law does not turn into an advantage – it’s your professional duty to make sure otherwise.
In the Swift Freights case, the Claimant was represented by Mr Taj Uddin of Counsel, Guildhall Chambers Portsmouth and RJR Solicitors. If readers have questions on this case, they will be happily received @ email@example.com.
Taj Uddin, Barrister
Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)