No party for party litigants

  • Insight

30 October 2018

In the recent case of Khaliq v Gutowski [2018] CSIH 66, the First Division of the Court of Session has reiterated that it is not the role of the court to assist and excuse the failures of a party litigant merely because he or she does not have legal representation.

Background

In this case, the defender was a party litigant and had failed to comply with the rules of the Sheriff Appeal Court. As a result, and taking account of the lack of substantive merit in the appeal itself, the Appeal Sheriff refused the appeal. The defender appealed to the Court of Session, which upheld the decision of the Sheriff Appeal Court.

Balancing fairness and relieving failures

The Lord President made it clear that the court has a duty to balance fairness between the parties, and is not obliged to relieve the failures of a party litigant:

• “[The rules of court] are designed to meet the requirement of access to justice and fairness; but this must be fairness to both parties…affording one party excessive latitude can prejudice the other” (Paragraph 34);
• “[The fact that a party has no legal representation] will not usually justify applying…a lower standard of compliance with rules or orders of court…it is now well-established that the fact that an applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him.” (Paragraph 35, quoting Lord Sumption in the case of Barton v Wright Hassall [2018] 1 WLR 1119).

The relationship of the courts with a party litigant

The Lord President also made it clear that the court must not act in a manner which would appear biased:

•  “[The function of the court is that of an] independent arbiter. The court should not take upon itself the role of adviser to a party…it should not become the party’s law agent, just because he appears unrepresented” (Paragraph 41).

If you are considering representing yourself in a court action, it is likely that the court will afford you some latitude in the beginning stages. However, as the action progresses, the court will expect you to be as prepared as if you were a lawyer. It is therefore always best to take legal advice, to ensure that you have the best chance of achieving the best outcome.

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