Litigants in person: a growing problem for insurers

Date published

29/11/2016

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Recent government statistics revealed the proportion of family cases with neither side represented was 34%. The interim report of Lord Justice Briggs’ Civil Courts Structure Review noted that the withdrawal of legal aid, coupled with the complexity of law and procedure, means that better provision for the assistance of LIP is required in both civil and other courts.

For insurers, the presence of LIP inevitably increases the length of the time to resolve a dispute – largely due to a lack of understanding of the litigation process.

Case management rules where at least one party is unrepresented require the court to adopt such procedures “as it considers appropriate to further the over-riding objective” (CPR 3.1A). This allows the court flexibility to deal with hearings in a less adversarial manner.

The 2012 Jackson Reforms signalled a firmer approach to court timetables. In theory, this should have put pressure on LIP to comply with court imposed deadlines. In practice, reported cases indicate considerable inconsistency of approach towards LIP:

Scriven v Scriven [2013] is an illustration of the Court taking a hard line approach to LIP. Here, the Defendants were represented at the trial but for most of the time were LIP. A few weeks before trial, they sought to vacate the trial date on the basis that they needed to address the Claimant’s amendments to the particulars of claim and needed further time to prepare an expert’s report.  The Judge dismissed their application. Although he accepted that “some allowance needed to be made for LIP”, he concluded their reasons for an adjournment were not good enough. In his view, the Defendants were at fault because of their failure to act expeditiously over a long period of time.

Conversely, a number of Court of Appeal judgments suggest a more lenient approach towards LIP:

The decision in Kishenin & Another v Bleach & Others [2015], suggests that judicial tolerance may be exercised towards LIPs’ procedural mistakes in certain circumstances. Proceedings were brought against four Defendants, including a LIP (S) and a company that she wholly owned and controlled (T). Judgment was entered against all four Defendants at a hearing which S was unable to attend as a result of ill health. S appealed and only two days before the hearing realised she had appealed in a personal capacity only. At the appeal hearing, S belatedly applied and was granted permission to file an appeal notice on behalf of her company T out of time. Although the delay was serious and significant, the Court was satisfied that it was just to extend the time in what were “truly exceptional” circumstances.

What should insurers do?

Insurers need to arrange for dedicated staff to handle cases involving LIP. Staff should be ready to assist LIP where appropriate to ensure they comply with court rules and help maintain the court timetable. Recalcitrant LIP need to be firmly managed by staff qualified to do so. Early dispute resolutions should be considered to see if there is a simple remedy, such as an apology, which may allow a speedier settlement of the claim.

Conclusion

The government is consulting on increasing the small claims limit as well as introducing a tariff system of compensation for claims of a relatively minor nature. These changes, if implemented, will serve to increase the numbers of LIP.

To meet this challenge, insurers, working with their solicitors, need to ensure staff are properly trained. In addition, the insurance industry needs to lobby the government to ensure that adequate funding is in place to assist LIP navigate their way through the court system.

This article was first published by Insurance Post on 28 November 2016.