Thursday, 13 March 2008

COSTS - LITIGANTS IN PERSON

Note: This file does not form part of the LCD or CS sites. The files on those sites are the only official versions of the CPRs and related material. Please also note that the cross-references are not claimed to be comprehensive.


Introduction

(a) A person is a "litigant in person" during any stage of
proceedings in court in which he or she is not represented by a solicitor or firm of solicitors. For this purpose the term "litigant in person" may include a company or other corporation, a barrister, a solicitor, a solicitor's employee or other authorised litigator who is acting for himself. However, the term does not include a solicitor who, instead of acting for himself, is represented in proceedings by his firm or by himself in his firm's name (CPD 52.5).

(b) Litigants in person have rights of audience in all detailed assessment proceedings. As to their entitlement to have a MacKenzie Friend present, see Section 1 para 1.2, above.
(c) The
costs recoverable by parties in respect of periods when they are or were litigants in person are governed by the Litigants in Person ( Costs and Expenses) Act 1975 and by CPR 48.6. This section of the Guide is intend to help parties understand the position. Reference must be made to the Act and the CPR if there is any doubt.
(d) The staff of the SCCO are not permitted to give rulings or legal advice on the Act or on the CPR nor to enter into any lengthy or technical advice as to the meaning of this Guide nor to recommend any individual
solicitors or costs draftsmen who may be willing to give advice or assistance.
(e) Advice and assistance may be available from the Citizen's Advice Bureau in the Royal Courts of Justice. Further information as to this is given in
Section 1 para 1.7, above.
(f) A
litigant in person who is unable to obtain copies of any prescribed form needed may ask the Costs Office for help (see Section 1 paras 1.5, 1.8 and 1.9). Most of the "N" forms mentioned in this Guide can be supplied free of charge.
22.2 Costs Recoverable by Litigants in Person

The
costs of litigants in person can be divided into four categories:
(i) out of pocket expenses (such as court fees, fares travelling to court, witness fees, etc) if they relate to work or
disbursements which would have been done or made by a solicitor had a solicitor acted for the litigant in person.
(ii) Payments made to obtain expert assistance in connection with assessing the claim for
costs. For this purpose a person is an expert if he is a barrister, solicitor, Fellow of the Institute of Legal Executives, Fellow of the Association of Law Costs Draftsmen, or a law costs draftsman who is a member of the Academy of Experts or the Expert Witness Institute. However, a litigant in person cannot recover any costs in respect of a person or entity whose services he retains to provide general assistance in litigation unless that person or entity has a right to conduct litigation within the meaning of s 28 Courts and Legal Services Act 1990Acts (see Agassi v HM Inspector of Taxes) [2005] EWCA Civ 1507. (Such a right is conferred by the Law Society, the Bar Council, the Institute of Legal Executives or an appropriate professional body.)
(iii)
Costs for work done by the litigant in person which caused him or her pecuniary loss (for example, a litigant in person who is employed losing a day's pay through attending a court hearing or through going on a long journey to interview an essential witness).
(iv)
Costs for work done by a litigant in person which did not cause him or her any pecuniary loss (eg, the examples just given if the work was done during leisure time).

22.3
Procedure on Detailed Assessment

(a) The procedure by which a
litigant in person seeks to obtain costs from another party is as set out in Sections 3 to 17 of this Guide (briefly, service of a bill plus notice of commencement and certain other documents, obtaining a default costs certificate or, if points of dispute are served, serving a reply and/or filing a request for a detailed assessment hearing).

(b) Where a litigant in person wishes to prove that he has suffered financial loss he should produce to the court any written evidence he relies on to support that claim and must serve a copy of that evidence on the paying party at the same time as serving the notice of commencement.

Calculation of Charges for Time Spent by a Litigant in Person Preparing the Case

(a)
In order to determine charges for time spent, the
costs officer or Costs Judge must decide four questions:

(i) What items of work were done and what time was actually spent on those items?
(ii) In respect of each item, how long was it reasonable for the
litigant in person to spend? The time allowed may be less than the time actually spent by the litigant in person and more than the time that would have been spent by a solicitor, had a solicitor been employed to undertake that item.
(iii) What hourly rate or other rate is it reasonable to apply in respect of time reasonably spent by the
litigant in person? Unless financial loss can be shown the rate allowed is £9.25 per hour under CPD Section 52.4 (£25 per hour in the Employment Appeal Tribunal).
(iv) If all the items of work for which
costs are recoverable had been undertaken by a solicitor, what would a solicitor's reasonable charges have been for doing such work?
(b) The evidence to be served in support of a claim to prove financial loss should include what work a
litigant carried out during the case, what employment the litigant may have taken up but for the case and what job offers were received and/or refused on account of the case (see Mainwaring v Goldtech Investments Ltd) [1997] 1 Costs LR 143 at page 156).
(c) There is an overall limit on charges for time spent preparing the case which can never be exceeded. The cost
officer or Costs Judge cannot allow more than two thirds of the sum which a solicitor could reasonably have charged for doing the work (CPR Section 46(2)).
22.5 Calculation of Disbursements

(a) The
litigant in person will be allowed all his reasonable disbursements (such as court fees, out of pocket expenses) in full if the costs officer or Costs Judge decides all of the following questions in his or her favour:

(i) were these
disbursements actually incurred?
(ii) If so, at the time they were incurred, did it then appear necessary or at least reasonable to incur them?
(iii) Are the sums claimed for each disbursement reasonable in amount?
(b) If, in respect of any disbursement the answers to questions (i) or (ii) is no, the amount claimed for that disbursement will be wholly disallowed.
(c) If, in respect of any disbursement, the answers to questions (i) and (ii) are yes but the answer to question (iii) is no, the
costs officer or Costs Judge may allow a reduced amount for that disbursement.

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it is outragous that a litigant in person's costs is capped atabout £9.25 per hour.

The natural and fairer cap would simply be 2/3rd of the costs that would be charged by a firm of solicitors had they been instructed to handle the dispute. The unsuccessful party would be getting a bargain if the costs were capped at that figure.

£9.25 per hour is no where a reasonable compensation for anyone's time and effort. A pressure group should take that up with the department of justice, alternatively have solicor's costs capped at about £13 per hour, to level the field.

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