Litigants in Person

Relevant provisions

Litigants In Person Act (Costs and Expenses Act) 1975
The act does not apply in all cases but does apply to most tribunals where costs are recoverable, including all civil and family courts, the Lands Tribunal, the First-Tier Tribunal and the Upper Tribunal. In circumstances where the act does not apply, only out-of-pocket disbursements will be recoverable – see section 1(1).

Law Society Guidelines on Litigants in Person

CPR 46.5 – Litigants in Person

Practice Direction to CPR 46.5 – Litigants in Person

CPR 46.5(6) clarifies that an Litigant in Person can include a company or other corporation, a barrister, a solicitor, a solicitor’s employee, a manager of a body recognised under section 9 of the Administration of Justice Act 1985 (incorporated practices) and a person who, for the purposes of the Legal Services Act 2007, is authorised to conduct litigation. A solicitor LLP however, is not a Litigant in Person (Scott Halborg v EMW Law LLP [2017] EWCA Civ 793).

A Litigant in Person can choose to calculate his/her/its costs on one of the following bases:

  1. An hourly rate to reflect actual financial loss, where the actual loss can be established or
  2. On a fixed hourly charge – currently £19 per hour.

Previous litigant in person rates

1st December 1995 – £9.25 per hour

1st October 2011 – increased to £18.00 per hour

In either case, the maximum that a Litigant in Person can recover for time spent on the case is two-thirds of the amount that would have been allowed if they had been legally represented.

If the actual financial loss is less than the fixed rate of £19 per hour, the Litigant in Person may recover the higher sum so a simple calculation should be made before electing to claim actual financial loss as opposed to the fixed rate. The Litigant in Person can also claim actual loss for the period during which actual loss was suffered and a fixed rate for work done during the period for which no actual loss was suffered. The total sum claimed, however, is still subject to the two-thirds limit explained above.

Evidence of Loss

Where a Litigant in Person seeks the costs of an interlocutory application to be summarily assessed, written evidence of any actual financial loss should be filed at least 24 hours prior to the hearing.

Written evidence of any actual financial loss should be filed with the notice of commencement where costs are to be assessed by detailed assessment.

Recoverability

A Litigant in Person who has obtained an order for costs may recover from his opponent:

  • The costs for the same categories of work and disbursements that would have been allowed if the work had been done or the disbursements had been incurred by a legal representative on their behalf. A Litigant in Person can only recover costs for work done that a solicitor would otherwise have incurred. For example, if a Litigant in Person lived abroad, he would not be able to recover the costs of travel to London, as a legal representative would not need to make that journey. It does not matter that the very same costs would have been recoverable if the Litigant in Person been treated as a witness. The Litigant in Person must decide whether to claim the time as a witness or as a notional solicitor. He is not entitled to claim both under rule 46.5(5).
  • The payments reasonably made for ‘legal services’ (see Campbell & Campbell below) relating to the conduct of the proceedings; and
  • The costs of obtaining ‘expert assistance’ in assessing the costs claimed (see CPR 46.5(3)(c) and PD 46 para 3.1). ‘Expert assistance’ is defined in PD 46 para 3.1 as “assistance from a barrister, solicitor, fellow of the Chartered Institute of Legal Executives, fellow of the Association of Costs Lawyers, or a law costs draftsman who is a member of the Academy of Experts or the Expert Witness Institute”.

Method on assessment

When assessing the costs of an Litigant in Person, the court needs identify a rate based on either the actual financial loss suffered or a fixed rate of £19 ph. It must then assess the time reasonable and proportionate time to be allowed (to include allowances for research etc) and compare this to what a reasonable legal representative would have charged for the same work and allow either the assessed costs or reduce them to two thirds of the figure assessed for a reasonable legal representative.

Disbursements

Disbursements are assessed separately and are not subject to the two-thirds cap described above.
A Litigant in Person cannot recovery ‘notional disbursements’. For example, fees of counsel are not recoverable if counsel has not been instructed. If a Litigant in Person can establish actual financial loss in respect of a Fast Trial Trial, they will be entitled to recover two-thirds of the amount that would have been allowed for the advocate if one had been instructed. This is irrespective of the amount of actual financial loss. Although the Fast Track trial costs are fixed, a Litigation in Person still can recovery an additional sum under rule 45.39 if an advocate would have been entitled to do so. If no actual financial loss can be established, then the amount to be claimed is that in respect of time reasonably spent – see rule 45.39(5).

Notable Cases:

Only work that a solicitor would do

Law Society v Persaud (1990) Times, 10 May, QBD
A Litigant in Person can only recover costs for work done that a solicitor would otherwise have incurred.

Mealing-McLeod v The Common Professional Examination Board [2000] EWHC 185 (QB)
Costs of routine postage, telephone calls, stationery and copying. Such costs are treated as part of the office overheads and are not normally recoverable by a legal representative so it would follow that the Litigant in Person would not be able to recover these. Mr Justice Buckley confirmed this by finding:

“A solicitor’s charging rate includes or takes account of the fact that he has support staff, secretaries, messengers, and so forth. A Litigant in Person, for example, must himself post letters, take files to court and photocopy documents. “The time spent reasonably doing the work” mentioned in CPR 48.6(4) permits a reasonable assessment of time spent by the Litigant in Person and should reflect those matters.” 

It can be argued that although these expenses are subsumed by the legal representative’s higher hourly rate, they cannot be the case in respect of a Litigant in Person much lower hourly rate and the Litigant in Person should, therefore, be entitled to recover those costs.

Agassi v Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507, [2006] 1 All ER 900
In Agassi the cost of using a tax expert to undertake litigation work was not recoverable as a disbursement since a legal representative would not have instructed an unqualified third party to undertake work which they would have undertaken themselves.

Also, the fact that a party may have had legal representation for part of the claim does not preclude a successful Litigant in Person recovering costs for the aspect of work he was unrepresented (see para 25).

Proving financial loss

Mainwaring v Goldtech Investments Ltd [1997] 1 All ER 467
A Litigant in Person has the evidential burden of establishing that, on the balance of probability, he has suffered a financial loss and what, exactly, that loss is. Mr Justice Robert Walker: “a self-employed tradesman in a small but profitable way of business who has more customers than he can cope with and can fill every working hour to advantage; at the other extreme, a retired civil servant with an index-linked pension who finds the conduct of litigation a more interesting pastime than bowls or crossword puzzles.’

Joseph v Boyd & Hutchinson[2003] EWHC 413
Mr Justice Patten considered that the court should adopt a ‘broad brush’ approach to assessing financial loss and should not enquire to any great extent whether the Litigant in Person would have been engaged on other business. If the Litigant in Person was available during working hours, then that should enough to assume he was available to work and has suffered a loss of earnings.

Costs of the Trial

Hart v Aga Khan Foundation (UK) [1984] 2 All ER 439
It is not permissible for a Litigant in Person to recover ‘notional’ disbursements, such as counsel’s fees where counsel was not instructed.

Solicitors as litigants

London Scottish Benefit Society v Chorley Crawford and Chester [1881 – 5] All ER Rep 1111 CA and [1884] 13 QBD 872
No costs are recoverable for the time of a non-lawyer litigant in person but a solicitor acting for himself can recover his fees by reference to his usual professional hourly rate.

Buckland v Watts [1970] 1 WLR 70, Sir Gordon Willmer
Followed decision in ‘Chorley’. Also states “Other professional people, who become involved in litigation and conduct their own cases, may recover something in respect of their own professional skill in so far as they qualify as witnesses.

Richard Patrick McIlwraith -v- (1) William Anthony McIlwraith (2) Stevens and Bolton 2005 (July 2005: Master O’Hare)
Litigant an employed solicitor

Barristers as litigants:

Fauz Mohammed Khan -v- Lord Chancellor 2003 (QBD 17.01.03 Mitchel J)
The work involving the time and skill of a practising barrister for the purposes of legal proceedings to which he was a party is to be treated as an expense properly incurred, and he is entitled to be indemnified in respect of such work – at the full rate of remuneration as a barrister. This was a criminal matter and the true status of the Defendant should not be confused with his qualification as a barrister. He could not claim for attending conferences or the hearing or for any work that an intelligent lay client could do.

R (on the application of Bar Standards Board) (Claimant) v Disciplinary Tribunal of the Council of the Inns of Court (Defendant) & Natasha Sivanandan (Interested Party) (2016) CA (Civ Div) (McCombe LJ, King LJ) 24/05/2016
Counsel’s fees – disciplinary tribunals: CPR r.48.6 did not apply to proceedings before the Disciplinary Tribunal of the Council of the Inns of Court. Rather than receiving the litigant in person rate, the barrister who was acting for herself and successfully defended disciplinary proceedings was entitled to her costs incurred in the expenditure of her own professional skill. Those costs were to be assessed in accordance with the independent discretion conferred by the Bar’s Disciplinary Tribunal Regulations 2009 reg.31.

Companies as litigants

Jonathan Alexander Limited v Proctor [1996] 1 WLR 518
No costs were recoverable by the plaintiff company in respect of the time and work of its director who had represented it in proceedings in the County Court. [Reversed by CPR Part 48.6(6)(a) – companies can now act and recover costs as litigants in person].

Scott Halborg v EMW Law LLP [2017] EWCA Civ 793
An LLP of solicitors which acted for itself in litigation was not a litigant in person for the purposes of CPR r.46.5, and was not therefore limited in its recovery of costs under r.46.5 and CPR PD 46 para.3.4. Chorley applied.

Other issues

R v Legal Services Commission (Formerly Legal Aid Board), Ex Parte Wulfshon [2002] EWCA Civ 250 (Schiemann LJ, Rix LJ) 08.02.02
Litigants allowed more time than a solicitor – A litigant in person was entitled to costs in the sum of £10,460 to cover the number of hours he had to put into researching complex issues.

Grand v Gill [2011] EWCA Civ 902
Research time
Lord Justice Rimer, at para 14, accepted that a reasonable allowance for a Litigant in Person to expend time in research is, in principle, recoverable – Lord Justice Schiemann in R v Legal Services Commission, Ex p Wulfsohn [2002] EWCA Civ 250. However, the £15,000 claimed was allowed at £707.77 to reflect the two short issues upon which the claim succeeded. This was considered to be a sum that was reasonable and proportionate for the Litigant in Person to incur.

Pritchard Englefield -v- Steinberg (March 2003: Master Rogers)
Litigant an Amercian Attorney.

Campbell v Campbell [2018] EWCA Civ 80 & [2018] 1 Costs LR 51
Foreign lawyers’ time
A Litigant in Person in whose favour a costs order has been made cannot recover for work undertaken by a foreign qualified lawyer in conduct of the case under CPR 46.5(3)(b) as they cannot provide ‘legal services’ for the purpose of this rule. The Court of Appeal found that the legal services must be provided by or under the supervision of a lawyer who must be someone who can be expected to be competent to supply services relating to the conduct of the proceedings in this jurisdiction.