The Cost of Being a Litigant in Person

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Solicitor Emma Slade looks at the circumstances in which Litigants in Person can recover their legal costs and how we can help them

The usual cost consequence in litigation is that the losing party should pay the successful party’s legal costs. But what if you, as the successful party, are a Litigant in Person (LiP)? What can you claim?

The Litigants in Person (Costs and Expenses) Act 1975 allows a LiP to recover “sums in respect of any work done and any expenses and losses incurred…in or in connection with the proceedings to which the order relates.” This only applies though to cost-bearing litigation such as litigation in civil or family courts. Other types of litigation – for example, in an Employment Tribunal – the LiP cannot recover their costs.

This is all very well but what does it mean in practice?

In short, it means that the LiP can recover their disbursements (although this is subject to limitations – see below) and their ‘costs’.

What then is a LiP’s costs?

A LiP’s costs can either be their actual loss or a fixed hourly charge. So, for example, if the LiP is a self-employed trader and can show that, but for the litigation, they would have been working, they would be able to claim that loss. That is going to be very difficult to prove as evidence is required that the loss has been sustained on each and every occasion that the LiP worked on the claim. As such, the Court will need to make a judicial decision on what the losses are likely to be necessitating a hearing to make that determination (which thereby incurs further costs!). On top of that, the LiP can only recover two-thirds of the amount they would have incurred had they been legally represented.

Most LiP’s therefore elect to use a fixed hourly charge which is currently £18/hr (£9.25/hr before 01.10.11) although the LiP will need to be very careful on their time recording to justify their claim. Again, it is subject to the two-thirds rule.

However, even if the LiP chooses to use a fixed hourly charge, the claim for costs will still be subject to the all important determination as to whether the work and time involved were reasonably incurred and proportionate to the claim itself. The Courts will allow a LiP a reasonable amount of time and costs in researching issues as clearly, a LiP is not legally trained and cannot be expected to understand and know the law without some research. However, it still needs to be proportionate. Take for example the matter of Grand –v- Gill 2011 EWCA. The Claimant made a claim for LiP costs in the sum of £15,257.50 being costs incurred before she received pro bono assistance. She had in fact made an appeal based on 11 separate grounds but only received permission to pursue two of those grounds of which she was only successful on one ground. She had lodged with her Appeal, a 27 page Skeleton Argument of which only 14 pages were applicable to her appeal. The Court of Appeal concluded therefore that only a very small proportion of her costs claimed were reasonably incurred and proportionate to the claim so she only recovered £705.77.

Having said that though, in fast track cases, if the LiP is able to show that they suffered a financial loss, they would be entitled to recover two-thirds of the cost of a trial advocate irrespective of the actual loss.

What about disbursements?

There are two issues here. Those disbursements which would have been incurred even if a legal representative had been instructed and those relating to ‘expert assistance’ which would not have been incurred if legal representation had been used.

In respect of the first part, disbursements which would have been incurred even if a solicitor had been instructed (for example, experts fees), will be recoverable.

The second part though is subject again to the issue of reasonableness. Employment of a barrister or a solicitor to give ad hoc advice is generally recoverable provided it does not duplicate the LiP’s costs in, say, research. At the same time, costs which would have been implied into a solicitor’s fee are not recoverable by the LiP. For example, in the matter of Law Society –v- Persaud (1990) Times 10 May QBD, the LiP lived in South Africa and sought to claim his costs of travel to England for hearings. The Court decided that, had he instructed a solicitor in England, the cost of travel from South Africa would not have been incurred and so he was not entitled to those costs. At the same time, the routine cost of postage, delivery or even stationary, is not a cost that can be recovered as it is implied as being incorporated in the hourly chargeout rate.

Conclusion

  • A LiP will be entitled to either their actual loss or a fixed chargeout rate of £18/hr (£9.25/hr before 01.10.11). Evidence will be required to prove the former
  • The costs claimed must be reasonable, proportionate and necessary
  • The costs claimed will be subject to a ceiling of two-thirds the cost that would be incurred by a legal advisor
  • Disbursements will be allowed if they would have been incurred in litigation if a legal representative had been instructed; if not, they will be subject to the test of reasonableness taking into account the LiP’s lack of legal training.

Finally….

Litigant in Person costs are going to become an important feature in future litigation. The changes introduced by the Jackson Reforms (LASPO) mean that even though solicitors can continue to offer No-Win, No-Fee arrangements, a proportion of a client’s damages will be used to fund part of the litigation – especially the Success Fee element of the Conditional Fee Agreement. Many individuals may choose to represent themselves in litigation especially if the claim is of a lower value in which case, they will be looking to recover their costs of doing so.

Slee Blackwell recognises that self-representation is something that individuals would wish to consider but also recognises that assistance may be required on the odd occasion. Hours of research on the internet may not provide the right answer and, as demonstrated above, the cost of the research may not be recoverable – whereas the cost of expert legal advice can be recoverable. As such, we are always willing to provide an ad hoc advice service to litigants in person to assist them with conducting their own litigation.

For further details, please contact either Emma Slade on 01271 372128 or Roger Cheves on 01237 425225 who would be more than happy to assist and provide relevant guidance.