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The ETBB
The ETBB
In common with all judicial officer holders, FTT judges are trained on and expected to be familiar with and apply the guidance in the ETBB. The ETBB recognises the challenges faced by LIPs and places such importance on the issue that its guidance on dealing with LIPs is to be found in its first chapter. That chapter ‘aims to identify the challenges both faced – and caused – by LIPs before,during and after the litigation process, and to provide guidance to judges with a view to ensuring that both parties receive a fair hearing where one or both is not represented by a lawyer’ (paragraph 2).
Chapter 1, paragraph 13 of the ETBB states:
‘13. In 2013, a judicial working party chaired by Mr Justice Hickinbottom summed up the position as follows:
“Providing access to justice for litigants in person within the constraints of a system that has been developed on the basis that most litigants will be legally represented poses considerable and unique challenges for the judiciary. Cases will inevitably take more time, during a period of severe pressure on judicial time. However, litigants in person are not in themselves ‘a problem’; the problem lies with a system which has not developed with a focus on unrepresented litigants. We consider it vital that, despite the enormous challenge presented, judges are enabled and empowered to adapt the system to the needs of litigants in person, rather than vice versa.”’
Amongst the challenges faced by LIPs, the ETBB notes being ‘ill-informed about ways of presenting evidence’ and being ‘unable to understand the relevance of law and regulations to their own problem, or to know how to challenge a decision that they believe is wrong’ (chapter 1, paragraph 15), which ‘have an adverse effect on the preparation and presentation of their case’ (paragraph 16). The chapter details the common procedural misunderstandings in case preparation, the first of which is in statements of case, including ‘failure to put the salient points in their statement of case’ (paragraph 31).
Amongst the guidance given on areas of difficulty for LIPs and how to help is the following (paragraph 35):
‘• Particularisation of their case/issues for hearing: Lawyers find it relatively easy to precis and identify key points of an argument. For many other people, this can be extremely difficult. As a result, when ordered to provide particulars, LIPs tend to either miss the deadline, avoid the task altogether or do it incorrectly – either omitting key information or overloading with excess information, often beyond the scope of the original pleading. Similar problems can arise in jurisdictions where parties are required to produce a list of issues for the hearing.
• How to help: Where practical, avoid making orders that LIPs must particularise their case beyond one or two very simple questions on a clear point. Ordering LIPs to provide complex schedules of their claim is rarely a good idea. Where necessary, it is better to hold a case management hearing and talk the LIP through their claim, extracting the required particulars and recording them in the case management order. In regard to the list of issues, if the other party is represented, they can be asked to prepare the first draft from what the LIP has so far put in writing.’