The judgment of His Honour Judge Paul Matthews (sitting as a Judge of the High Court) in Reynard v Fox [2018] EWHC (CH) is the first reported to cite the Supreme Court’s decision in Barton v Wright Hassall LLP [2018] UKSC 12.

HHJ Matthews made clear that whilst the Supreme Court Judges had been split in their decision, they all agreed that being a litigant in person was not excuse for non-compliance with the rules of procedure, the exception being that a “special indulgence to a litigant in person might be justified where a rule was hard to find, difficult to understand, or it was ambiguous”.

In the matter before HHJ Matthews, Reynard, a bankrupt former ski tour operator, had brought a claim for negligence against his Trustee in Bankruptcy. Reynard failed to bring the action within the bankruptcy proceedings in accordance with s.304 Insolvency Act 1986 and so the Trustee applied to the Court to strike out the claim. Reynard argued that, as a litigant in person, he lacked “detailed knowledge of the insolvency regulations”. HHJ Matthews expressed the view that s.304 was not a provision falling into the category that a “special indulgence” could be given and added that:

“But even if being a litigant in person were some sort of excuse in general, it would not avail the claimant anyway in relation to the strike out application. The fact is that, if the court strikes out a claim under CPR r 3.4(2), it does not do so to punish the claimant. It does so because the claim as formulated is either not sustainable or it is not fair in the circumstances to proceed with it. Here we are concerned with the former. It is nothing to do with the claimant's being a litigant in person. It is simply that the kind of claim he or she has chosen does not apply on the facts of the case. You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person. Defendants also have rights, including the right not to be made liable for causes of action which do not lie against them.”

The Judge’s references to the rights of the Defendant appear to echo the comments of the Supreme Court in noting that conveying any advantage to a litigant in person must also be seen in the context of conferring a disadvantage to their opponent.

 

 

Pete Blackmore

About The Author

Pete Blackmore

Head of Advocacy

Solicitor