The Judgment of Lord Justice Irwin in Ogiehor v. Belinfantie EWCA Civ 2423 raises interesting questions as to the culpability of litigants in person who fail to comply with the Civil Procedure Rules. The Judgement was given upon the Claimant’s application to appeal a wasted costs order made by His Honour Judge Cryan.
By way of background, the Claimant issued a personal injury claim against the Defendant. Whilst the Claimant was originally represented, he had been acting as a litigant in person for many months by the time of the trial in March 2016. During the course of the trial, despite clear efforts to prevent him from doing so, the Claimant disclosed the details of a part 36 offer made by the Defendant’s representatives to settle the claim. As a result of this the Court deemed it was in an “impossible position” and His Honour Judge Cryan adjourned the trial, withdrew as the trial judge and ordered the Claimant to pay a sum on account of the Defendant’s wasted costs within 4 months, in default of which the claim would be struck out.
The Claimant appealed, arguing that the circumstances did not justify the wasted costs order.
In his judgment Irwin LJ considered the test for a wasted costs order (Ridehalgh v Horsefield  Ch 205 CA) and noted that whilst it would have been clearly improper, negligent and unreasonable for a legal representative to disclose such an offer to the Court during the trial the Claimant was not a legal representative but a litigant in person. Irwin LJ then considered the Supreme Court’s recent judgment in Barton v Wright Hassall LLP  UKSC 12, quoting paragraph 18 from Lord Sumpton’s judgment, which included the following sentence:
“Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”
Irwin LJ noted that the rules concerning without prejudice offers were complex and accepted they may not be immediately accessible to a lay person, however, it was clear that the Claimant in this particular matter had been expressly warned not to disclose the details of the offer and there had been efforts from all those present in the Court room to try and prevent him. Accordingly, Irwin LJ concluded that the Claimant must have known that he was doing something he ought not to, and his conduct “even as a litigant in person” was improper.
Accordingly the appeal was dismissed.