Observations of an old Litigant in Person

diyLAW re-presents Observations of an old LiP by David Fabb in the light of the Tomlinson Report.


My days as a Litigant in Person date from 2006 when I faced the stark choice of continuing to diminish my remaining and fast dwindling assets by making large, regular donations to the comfortable lifestyle of a large Manchester firm of Solicitors, OR, “going it alone”.

Having been divested of a substantial group of Companies in 2003 by a rapacious large firm of accountants, well practised in the black art of working hand in glove with Banks and funders to feed off the carcases of asset-rich businesses, I had, by 2005 “got going” again, using as a springboard one of my companies I had bought back from the Administrators of my Group.  The “hi-tech” metal bashing business had, by December 2005, expanded to a group of 4 Companies.
It was viable and expanding.  My home had been re-mortgaged to provide working and loan capital.

I was widely known to have been raising hell about the highly questionable actions of the “professionals” concerned, aided and abetted by dodgy lawyers and valuers. Silly me!  I thought if I laid all my evidence before the ICAEW, the self-regulator of Accountants and Insolvency Practitioners, who, mostly, are FCAs then the ICAEW would deliver a “guilty” verdict and deal appropriately with the miscreants.  Dream on!

On about the 20th December 2005 the ICAEW delivered their verdict that there was no evidence that the Administrators had behaved other than lawfully, professionally, -”No prima facie evidence of wrongdoing”.  No change there!

Out of a clear blue sky, on 23 December 2005, I received, along with uncle Tom Cobbly and All, Notice that the Administrators were suing me, my (new) Company and my Daughter.  The main claim was for approx £1.5 Million being the value of the machinery and other assets I had acquired from the Administrators in July 2003.  Now, one would think it only necessary to tell them to go forth and multiply, lay out the documentation to prove the claim was false and had no merit, and “Bob’s your Uncle”.

Not a bit of it!.  Plainly, “they” knew there was no basis for the claim, BUT, it had the desired effect of causing the Company’s Bank, to force the new group into administration in March 2006.  The Bank clearly determined that.. “They would not, as one of “The Big Four” accountancy firms in the world, make such claim unless there was substance in it”, so true to form, they made for the hills.

By May 2006 ALL the new Group’s assets were auctioned, -JOB DONE!  I had laid out thousands to rebut the claims and mount a defence. I had lost my income and the means to keep the family home.  It did not take long for the penny to drop that, in such cases, Lawyers make their assessment as to how long you may be able to fund their work.  In this case, I smelled, also, a reluctance to “take on” one of the big boys.  After all, they are all, inter-dependent for fees and referrals.  Their flagship offices, in this case, are a few doors apart.

Would that diyLAW had been around then!  Where to turn?  Whose advice to trust?

There is no point in deluding yourself, in such circumstances, that you have more than a slim chance to heap ordure on your tormentors.  THEY have YOUR money.  You are, more or less, traumatised.  Even very good businessmen with much entrepreneurial talent and a good brain, are not in a good place to turn, overnight, into advocates.

THEY know all the tricks.  How to stay (just) within The Law.  They have fine-tuned the model.  Much of Insolvency Law was drafted by them. THEY can afford the hottest, dodgiest Lawyer and Barrister to deflect scrutiny and censure.  THEY and their legal mates can, to a surprising extent, I found, manipulate the Judicial Process and the Court Administrations, to load the dice.  To do other than capitulate is not for the faint-hearted.

Will things change?  Can vital, long overdue reform come in our lifetimes?  I am an optimist.  LiPs must take heart!

Since my life changed forever in 2005 many cries of “Injustice, Corruption!” have, and are, finding expression via social media and a burgeoning self-help movement.  The social and economic pressures afflicting much of Society encourage a rising tide of voices saying “Enough is Enough!”.

As a somewhat burned out senior citizen, I marvel at the professionalism and dedication of people like Brad Meyer and Jeff Lampert who have achieved the near-impossible by conceiving and nurturing diyLAW to channel their sense of civic responsibility and anger at the obstacles to justice which must be overcome by citizens unfortunate as to become LiPs.

To overcome the obstacles, one has first to understand what, exactly, the obstacles are.
I am sure that, had I known at the outset, what I came to know by the end of my journey, the outcome might well have been different.  LiPs cannot expect the playing field to be level.  First, the obvious point that the emotional burden of appearing in Court, perhaps for the first time, and usually under the weight of the sense of having been wronged, automatically places the LiP, whether as Applicant or Respondent, at a disadvantage to the Lawyer/Barrister opposing you.  Information by diyLAW can dramatically redress the balance by informing citizens as to how to play Lawyers and Court Administrators at their own game.

Then, there is the projection of superiority, frequently an artifice adopted by the less able advocates or Judges.  My trick to counter that is to imagine the individual at their morning toilet.  The robe and wig, under the large Insignia of office, are, then,  no more than props.  I remind myself they are mere mortals: often with more than their share of inadequacies, flaws and failings.  Many, stripped of the protection afforded by their bond of common origin, are men of straw.

We need serious reform.  The reforms overdue include a change from the no longer fit for purpose adversarial system.  Most commercial litigation would be over in a fraction of the time and justice served at a fraction of present cost if we had an inquisitorial system.
We need changes to the Rules of Discovery. More sanction for failure to observe adherence to administration compliance and some high profile instances of corrupt Solicitors and their clients doing time.

diyLAW is increasingly being seen as a conduit whereby the senior Law Officers can receive feedback channelled to address the critical problem arising from an ever-increasing tide of citizens for whom employing solicitors or being granted Legal Aid are not options.

David Fabb

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Not complying with Court orders could be fatal to your claim

Things have changed over the last few months and sadly you not complying with a Court Order could be fatal to your claim.

What does complying with a Court Order mean.  Simply if the Court has provided you with directions of how to conduct your case i.e. :-

  • “Both Parties to exchange List of Documents by the 5th May 2014 (or whatever date set down by the Court)
  • Both Parties to exchange witness statements by the 6th June 2014 (or whatever date set down by the Court)   etc.”


Think about it, its quite simple really, if you don’t bother to submit your Statement by the date ordered by the Court, and you then apply to the Court to ask for permission to submit your Statement late, and, the Court refuses, that is your case over and done with no matter how good your claim.

So what happened well CPR 3.9 happened on the 1st April 2013 and the Courts were directed to consider “all the circumstances of the case, so as to enable the Courts to deal justly with an application for relief of sanction” (a relief of sanction is you making an application to the Court if you have missed complying with a direction, rule or order of the Court) however the Judges would now only consider two questions when deciding whether they should grant your application for relief of sanction) (give you extra time to comply with their original Order).  The questions the Judges HAVE TO  consider are:-

  1. Can litigation be conducted efficiently and at a proportionate cost;
  2. The necessity of  enforcing compliance with rules, practice directions and orders.

Judge Lewison giving his Judgment in the Court of Appeal in the case of Perry v. Brands Plaza Trading 2012 EWCA Cov 224 said the following:-

“Courts at all levels have become too tolerant of delays and non-compliance with orders.  In so doing they have lost sight of the damage which the culture of delay and non compliance is inflicting on the civil justice system.   The balance therefore needs to be redressed”

Judge Lewison’s comments have proved influential and in the subsequent cases of Venulum Property Investments Ltd and Space Architecture and others 2013  Mr Justice Edwards-Stuart cited Judge Lewinson by stating that he regarded the new addition to sub-paragraph (f) to the overriding objective “as requiring the court to take a more robust approach when exercising a discretion to extend time for service of a claim form or particulars of claim

Venulum v, Space Artchitecture was a professional negligence claim in which the claim form had been served in time but the particulars of claim had not.  An application was made to extend the time of service of the PoC.

Mr Justice Edwards-Stuart found 3 factors where of particular importance in considering whether the application for relief of sanction should succeed:-

  1. There had been an unexplained delay of 5 years before the Claimant had instructed solicitors.
  2. On the information and documentation before the Court the Claimant’s claim was not a strong one.
  3. The claim was a vaguely pleaded claim for bad faith

The Judge stated the following:-

“In my judgement when the circumstances are considered as a whole particularly in the light of the stricter approach that must now be taken by the Courts towards those who fail to comply with the rules following the new changes to the CPR, this is a case where the Court should refuse permission to extend time”

Shortly after this case the Judges considered the matter of non compliance again in the case of Fons HF v. Corporal Ltd 2013.   This matter involved a late application to extend time for service of witness statements only three weeks after the deadline! Although the application was successful the Judge presiding gave this stern warning that he had:-

“come very close to refusing an extension to either of the parties” and referred to the fact that the “amended Civil Procedure Rules now require the Court to pay close attention on the failure of parties….a failure to comply with a rule direction or order is itself a clear breach of the overriding objective and is likely to result in severe sanctions”.

So you can see the Courts are taking a much stricter approach, however if you are unfortunate enough to miss a direction etc set down by the Court you may still be able to obtain relief from sanction if you :-
Make an application as soon as possible after you realise your error and attach a copy of the document you were supposed to serve etc and a clear and detailed Statement in support of you application explaining why there has been a delay. The Court will consider that there are unforeseen factors which can lead to delays, but do substantiate your explanation with any physical evidence you may have i.e. copy of sick note from your GP.

To avoid the stress of making such an application COMPLY WITH THE COURT’S DIRECTIONS and if you can’t apply to the Court PRIOR TO THE EXPIRY OF THE COURT’S ORIGINAL ORDER and seek the consent of your opponent.


by Deborah Aloba

of Affordable Law For You

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Negotiate, Litigate or Mediate?

By Russell Evans, Manager of Resolve UK[i]

If you have come to this website it is likely that you are involved in a dispute and seeking assistance. It is likely that you have not been able to negotiate a successful resolution of your dispute, have not been able to convince your opponent of your position or legal rights and are unable to satisfy your opponent of the remedies or redress to which you believe you may be entitled.

You may feel that your words have fallen on stony ground and that your attempts to negotiate have been frustrated. Maybe of course you have simply not been heard. There may also be a gulf between you not only in understanding but perspective.

You are probably feeling frustrated. What can you do? You collect your thoughts. You can of course try again and hope for a more positive response. You may however feel that you have reached an impasse. There is of course the option of litigation. Sometimes you may have no choice.[ii]

Litigation of course may bring its own ordeals and demands, including the need to prepare court papers, the need to attend at court before a judge and the need to facilitate argument and advocacy in your cause. Added to this process is the work of preparing and collating evidence, obtaining and finalising witness statements and invariably a good deal of stress and delay. Litigation is usually both lengthy and costly. The outcome is also out of your hands. Control ultimately rests in the hands of the judge and the judge’s decision will be handed down and imposed on the parties. Litigation in consequence has often been likened to a war focusing on a fight between the parties.

Mediation by contrast is a very different process. Mediation is both party and solution focused. In a mediation the parties to the dispute appoint an independent professionally qualified mediator to assist them. The mediator assists the parties to review their dispute, to consider options, to facilitate discussions and to explore and ultimately find solutions. The mediation typically takes place over the course of 1 day. It may last a few hours or may be longer where there is a more complex and involved dispute. A solution which is agreed by the parties is usually found. Indeed mediation has an 80 % success rate.

Mediation is far quicker and far cheaper than litigation. Mediation is also a private and confidential process. Parties to the mediation can have separate confidential discussions and meetings with the Mediator. Indeed the mediation process is flexible and can adapt to suit both case and party needs. It is not hemmed in by the formality of a court room.

Mediation can be used both before and after the commencement of court proceedings.

The Courts, the Judiciary and Government all support and recommend the use of mediation as a highly effective mechanism for resolving disputes.

Here is what Lord Justice Ward had to say in the Court of Appeal case of Oliver v Symons (2012) EWCA Civ 267:

Parties should ‘put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come’

Courts also now routinely consider the reasonableness of conduct of the parties to a dispute and proportionality when making cost orders. Indeed the courts can impose adverse cost orders on a party who fails to mediate. Here is what Lord Justice Rix had to say in the Court of Appeal case of Rolf v De Guerin (2011) EWCA Civ 78:

‘Parties should respond reasonably to offers to mediate or settle and…their conduct in this respect can be taken into account in awarding costs.’

Judges are in fact required to consider the use of mediation under the Civil Procedure Rules.

Under the Ministry of Justice Scheme to which Resolve UK belongs the cost of mediation can start at just £50 or £100 per party for lower value claims. Under the scheme there is a sliding scale depending on the size of the claim. For claims below £50,000 the mediator’s fee is fixed at a maximum of £425 per party for a half day appointment.[iii] Some low value claims can even be dealt with over the telephone. In most cases a mediation venue will be required. Mediation rooms can be provided by Help4Lips.

Mediation has a wide variety of uses. By way of example it can be used to resolve:

  • Property disputes including claims as to ownership as well as boundary and construction disputes

  • Disputes about wills and probate and claims for inheritance

  • Insurance claims – fire, flood and theft as well as personal injury

  • Business and trade disputes including disputes between business owners, partners, directors and shareholders

  • Employment claims including grievances and claims for discrimination and unfair dismissal

  • Family disputes including financial division and child access

There are of course many other types of disputes where mediation can assist. It is impossible to list all here. If you would like to resolve your dispute Mediation could be right for you.

[i] Russell Evans is a practicing Mediator, Arbitrator and Legal Consultant. He is practice manager at Resolve UK a nationally accredited mediation panel approved by the Ministry of Justice. He is a former solicitor and former Head of Litigation & Dispute Resolution.  For further details or to explore the use of mediation see www.resolveukmediation.co.uk or contact Russell at resolve@resolveuk.co.uk

[ii] There are defined time limits for bringing court actions and tribunal claims.

[iii]  Scale as at July 2013

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Litigants in Person: Guidelines for Lawyers

The Bar Council, CILEx and the Law Society have prepared  guidelines to  assist lawyers when dealing with litigants in person. diyLAW is convinced that reading these guidelines will also be extremely useful for LiPs to get a better understanding of the way the Law works.

Many litigants in person feel the system is against them. This document is a substantial effort to ensure the process works for all parties, most particualy for LiPs. If you are a litigant in person we encourage you to read these guidelines and try and follow the process laid out in your case


Please click on this link to access the document: http://www.lawsociety.org.uk/support-services/advice/articles/litigants-in-person-new-guidelines-for-lawyers-june-2015/

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Litigants right to fear high legal costs, says government research

by Dan Bindman

of Legal Futures


The fears of litigants about the high cost of legal representation were borne out by their experience, government-commissioned research has found.

The qualitative research, carried out by Ipsos Mori for the Ministry of Justice, accompanied the government’s response to its court fees consultation and aimed to discover whether they would have been deterred from starting proceedings if fees were set at higher levels.

It questioned 54 civil claimants and family applicants, including individuals and small businesses, and covered those who were privately paying, funded by conditional fee agreements (CFAs) and legal aid, and litigants-in-person. As the government no doubt hoped, the survey concluded that most claimants did not consider court fees a barrier to taking a case to court.

However, a section on self-funded represented parties supported the argument that fixed fees in litigation could help to mitigate consumers’ fears about spiralling cost. The researchers said litigants often began with the perception that representation was expensive, a view that was reinforced when initial quotes were supplied.

They also found, in both civil and family cases, that self-funded claimants and applicants “tended to find that the final costs were higher than expected”, confirming their initial misgivings about price. The survey explained this was because “they had typically believed that the case would be completed sooner and would involve fewer court appearances, and less involvement from a solicitor”.

The researchers conceded that this might not be the view of the majority of civil litigants given that many settle before a hearing.

Fear of up-front costs drove many litigants to seek representation under a CFA and they reported that they would not have been able to afford representation if they had not found a solicitor willing to act for them on that basis.

Unsurprisingly, the researchers concluded that their findings suggested that “legal costs could be a potential deterrent to bringing cases to court for those who do not have sufficient earnings or savings to pay such costs independently”.

Among litigants-in-person, many claimants seeking relatively small amounts of money were content to proceed without representation, but some who wanted representation and could not afford to pay for it, decided to self-represent rather than drop their case.

In the above context, “low awareness” of court fees was common and they were not considered crucial in decision making. The fees “were perceived to be a relatively small element of the total costs of going to court”.


Please refer to the original article here.

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

LiPs help LiPs with #DIYLAW

On 8th of December 2017 diyLAW attended the Civil Justice Council's  National Forum on "Access to Justice for Litigants in Person."

Here is a summary of our previous leaflets we presented at the Forum:

The forum brought together 130 judges, lawyers, advice workers, academics, regulators, civil servants and others to discuss progress made on improving access to justice for litigants in person (LiPs). Please find the forum`s summary here published by the Civil Justice Council

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Landlord and Tenant – What does the bedroom tax mean to you?

Since 1 April 2013, new housing benefit rules mean you won’t be able to get housing benefit to pay for all of your rent if your home has ‘spare bedrooms’. This media has called this the ‘bedroom tax’.

If you’re a council or housing association tenant and are receiving housing benefit and renting a home that has more bedrooms than you need, it’s likely that your housing benefit will be reduced. The new limit on the number of rooms you can claim housing benefit for is based on the number of people living in your home.

If you have more bedrooms than the new rules say you require, you will be treated as ‘under-occupying’ your home and will get less of your rent paid for by housing benefit.

If housing benefit no longer covers the full cost of your rent, you will have to pay the rest of the rent yourself. This must be paid directly to your landlord. If you don’t pay the balance of your housing benefit and you get behind with your rent you could end up with a Notice for Possession being served on you.

So how much will your housing benefit be reduced by well:

  • 14% will be taken off if you have one extra bedroom.
  • 25% will be taken off if you have two extra bedrooms.

So, if you have one ‘spare bedroom’ and your rent is £100 per week, only £86 will count when your housing benefit is assessed. You will have to pay at least £14 to your landlord yourself.

If you have two or more ‘spare bedrooms’, and your rent is £100 per week, only £75 will count when your housing benefit is assessed. You will have to pay at least £25 to your landlord yourself.

So what can you claim housing benefits for now?  Under the new rules you can only claim housing benefit for:

  • one bedroom for a couple
  • one bedroom for a person aged 16 or over
  • one bedroom for two children aged under 16 of the same sex
  • one bedroom for two children aged under 10 (boys and girls are expected to share a room)
  • one bedroom for any other child
  • one extra bedroom if you or your partner needs an overnight carer to stay.

Severely disabled children who need their own room will not be required to share a room. However the decision will be made by the Council who should take into account the severity of a child’s disability, so you will need to provide medical evidence or proof of an award of disability living allowance if one has been made) and how regularly another child’s sleep would be disturbed if they shared a room, so you may need to provide DVD evidence of your severely disabled child’s sleeping patterns

If you became an approved foster carer in the last 12 months you can count a room for a foster child.

If your child or partner or lodger is a member of the armed forces who is serving away, providing they intend to return to your home, you can count their room and if your child or partner etc is a student and they are away from home studying, you can count their room providing they are only away temporarily (less than 52 weeks) and intend to return home.

You won’t be allowed to claim housing benefit for ‘extra’ rooms that are used for:

  • children visiting a divorced or separated parent
  • couples who use separate bedrooms because of illness or disability
  • rooms used by disabled adults to store medical equipment.

If you or a member of your family are a disabled adult living in adapted or specially designed properties you may face cuts to your housing benefit, but it might not be practical or affordable for you to move.  It might be possible to claim a discretionary housing benefit, give us a ring or e-mail us and we can help you with making that claim.


Deborah Aloba

Affordable Law For You Limited



This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

"Information to support your case" - obtaining it or having to disclose it

It is thought that ”information is power” and making information available to the court and the parties to a claim has long been an integral part of the litigation process. Historically, the court of equity was the initial conduit for the process of the disclosure of information, ”discovery” as it was. It used to be that, at common law, a party could not be a witness in his own case – neither the claimant nor the defendant could be their own witness (!). As a result, the earliest bills in Chancery sought discovery of facts relevant to the claimant’s (then called the plaintiff) case to assist in achieving fair and equal judgment. With the passage of time, although the aims of discovery were recognised as valuable for litigation, its development led to onerous obligations on both parties, in terms of time, risk and cost. Often, it became a weapon which was capable of producing, in equity, as much of an injustice as it initially sought to guard against.

Fast forward to the 21st Century and the reforms brought about by ”Access to Justice” and the Jackson recommendations. Discovery, now renamed ”disclosure”, is still considered a vital element of litigation. It is recognised that there are substantial overall benefits to the exchange of information at an early stage of the proceedings - ensuring equality of access to evidence and possibly facilitating early settlement when parties have clarification of the strengths and weaknesses of their case. Discovery was, however, also ripe for reform given the perceived problems with the often disproportionate costs involved (and the possible, resulting undermining of access to justice), the practicalities of putting together often formidable court bundles (which were then largely unlooked at during a trial) and the ever-increasing need to deal with information contained in an electronic format.

So, what is disclosure? According to the Civil Procedure Rules (the ”CPR”) , disclosure is merely a formal statement that a ”document exists or has existed”. And what is a document? The definition here includes ”anything in which information of any description is recorded” - written documents, audio tapes, videotapes, photographs, as well as electronic documents (emails, WP documents, and databases) are covered. Also covered is material not readily accessible (for example, electronic documents stored on servers and back-up systems) as well as electronic documents which have been deleted. However, it is important to appreciate that it is the information contained within the document and its relevance to the issue(s) in dispute that determines whether or not a document is disclosable. 

It is possible, in certain circumstances, for this disclosure to occur before proceedings have even been commenced. There are specific pre-action protocols across a range of dispute types as well as a general Practice Direction covering pre-action conduct. In these, potential litigants are actively encouraged to disclose relevant documents informally at an early stage (albeit only those documents which support their claim). The objective is to provide parties with ”sufficient information …to allow them to understand each other’s position” . The aim is to aid the potential parties to make ”informed decisions about how to proceed and possible approaches to settlement, possibly avoiding litigation completely”. These pre-action protocols carry much weight with the court. Knowledge of the requirements suggested by them and subsequent compliance with those suggestions is an important consideration for any potential litigant. The court has a discretion to order sanctions against a party in the face of non-compliance – in relation to disclosure, refusing to release documents has led to cost consequences for the non-compliant litigant.

Additionally, the court has various statutory powers (depending on the court/tribunal or the nature of the claim) to order disclosure from a potential party to subsequent proceedings. Under CPR31.16, there are a number of criteria that need to be satisfied for the court to consider an order for what is called pre-action disclosure - the application is between the likely parties to subsequent court (rather than arbitration) proceedings, the documents are going to be disclosable in those proceedings in any event, pre-action disclosure would be beneficial in terms of fairness, assisting in resolution of the dispute without proceedings and the lessening overall costs. Even if these criteria are met, the court has further discretion as to whether to grant such an order. 

In exercising this discretion, the court will consider things such as the nature of the claim, its potential merits and the clarity of the issues involved, the costs (both in granting the order and the impact of not granting the order), the documents sought (their volume and nature), whether the information is available from other sources, and the previous conduct of the parties (this is where compliance or non-compliance with pre-action protocols in relation to disclosure may also impact positively/negatively on a litigant’s application).

  Any documents disclosed at this pre-action stage (whether informally under a pre-action protocol or by court order) can generally only be used for the purposes of the anticipated proceedings.

Once proceedings have been commenced, the court has a further power to order disclosure against a person who is not a party to those proceedings themselves. However, there are limitations as to when such orders may be made. The information sought must only be available from the third party. Additionally, the documents to be disclosed must be likely to support the applicant’s case or adversely to affect the case of another party to the proceedings and disclosure must be necessary to dispose of the claim fairly or to save costs.

Again, even if these criteria are satisfied, it is still the court’s discretion as to whether the order will be made. For instance, no order for disclosure against a 3rd party will be given if compliance would be injurious to public interest. Nor will it be given if the definition of the document or the class of documents is not sufficiently clear and specific in the application itself. The court will also consider the interests of the non-party to protect his privacy and the confidentiality of the documents against the interests of the party seeking disclosure. This is a remedy of last resort; such an order is not going to be given routinely as the court will need to balance the rights of the 3rd party against the need of the applicant in relation to the case (the ability for it to be dealt with fairly or to save costs).

There are other well-established situations (either pre or post the issue of proceedings) where an equitable remedy involving disclosure may be ordered against 3rd parties by the court in very specific circumstances, seeking to achieve very specific results. For instance, these include:-

(a) Norwich Pharamcal orders – where an application can be made for disclosure of documents and/or information from a 3rd party who, while a non-party to the litigation, is somehow involved or mixed up in the wrongdoing (innocently or otherwise), and
(b) search orders (formerly Anton Pillar orders) - a form of mandatory injunction from a master or district judge in the High Court. Such an order allows for entry to the defendant’s premises to search for, copy and remove documents and/or material in relation to the dispute. The aim is to prevent evidence being lost or destroyed. However, given the nature of the application and its potential impact, the application must be based on a very clear case with clear evidence of the document in the defendant’s hands as well its possible destruction.

In deciding whether pre-action disclosure or disclosure from a third party would be appropriate, the court is looking to balance finding a resolution to a dispute without recourse to actual proceedings as against assisting with an applicant’s nebulous claim. The court’s various powers in relation to requiring the disclosure of information (whether pre-proceedings between the parties or from a 3rd party) are important considerations for a potential litigant. Knowing and understanding the jurisdictional criteria that need to be established for any such order are important tools in the litigant’s arsenal.



Alison Bicknell



This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

How a Judge sees the Litigant in Person issue

Litigants in Person




If you are not a litigant in person:

Many litigants in person become involved in litigation because they have no alternative and many others become involved in litigation because they think that they have no alternative.

While you are perfectly entitled to be as firm as the circumstances require you should be unfailingly courteous.

Try to find what the real issues are and address them. It is your duty to all litigants in person to do what you can to assist them with the mechanics of the process of litigation such as (to the extent that you are permitted) helping with the orderly compilation of hearing bundles.

Expect to feel that it is frustratingly as if the court is bending over backwards in favour of your opponent.


If you are a litigant in person:

Try to identify the real issues.

Address the issues in ordinary English – there is no such language as “Courtspeak”.

Don’t download statements of case from the internet without understanding what they say and being able to support what is said at a hearing – the judge will be looking at you not the website.

Remember that asserting something is not the same thing as proving it.

Always obey court orders and, if you may be late, immediately apply for an extension of time or an adjournment with your reasons and (where needed) the evidence for doing so.

Take a good note.


Above is an extract from Case Handling - An Illustrated View from the Bench by HH Nicholas Chambers QC published by Wildy, Simmonds & Hill Publishing.

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Don’t Play Games in the Courts

There is a concept in law known as equity and the courts can sometimes use equitable principles of discretion to assist in civil cases. It is important to note that equity, which is a historical common law doctrine associated with fairness, does not apply to all cases, but for obvious reasons, it can be very helpful in a variety of civil law claims.

For a Judge to help out with a case by using equitable principles where available, it is common sense that he or she is only likely to do so where the person asking for it has played fair. In fact, there is a longstanding legal principle applying to equity, as follows :-

“he who comes to equity must have clean hands”

The inference from this is crystal clear.

A recent case clearly demonstrates how this works in practice.

In the Court of Appeal case of Jameer v Paratus AMC the case involved a mortgage possession action.

In summary, as is customary in these cases, the borrower was given every opportunity to try and avoid the property being repossessed by the mortgage lender. Over a period of several years, the case progressed to the point where a suspended possession order was made. This is in effect, the “last chance saloon”, an Order for possession is on record and the borrower needs to comply with payment terms or otherwise the lender can proceed without further court orders.

In this case, the borrower still was unable to comply and a possession warrant was ordered. The borrower then applied for this to be suspended on the basis that her financial situation was improving. The judge refused that application and the case ultimately reached the Court of appeal.

The issue in the Court of appeal was whether the lower Court should have exercised discretion in the borrower’s favour ? Her problem was that she claimed that her financial situation had improved but had failed to provide sufficient or accurate information to the court.

The point about this case is that the borrower had made obvious omissions in the documents she presented to the court and therefore was not entitled to any further discretionary help. In effect, she had not come to court “with clean hands”.


The upshot of this case is that it does not pay, whatever the underlying motives, to adopt a “cat and mouse approach” to court proceedings. This is a common situation in my experience and parties to litigation should remember that equity is often an important shield against an adverse ruling, so it makes sense to be completely open and honest with the court at all times.


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.


When you think you are right and everyone else is wrong

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.