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Civil Procedure: Less Leniency for Litigants in Person

Litigants in person are frequently afforded leniency in litigation. In the context of applications pursuant to CPR 39.3 and 13.3 there is a growing body of case law. One of the newest additions to this corpus is Tinkler v. Elliott [2012] EWCA Civ 1289.

Mr Elliott was engaged in long running litigation with Mr Tinkler in respect of which he had already been found to be in contempt of court and sentenced to a custodial sentence. Subsequently Mr Tinkler pursued a permanent injunction against Mr Elliott and sought a general civil restraint order.

The trial of that action came before Judge Tetlow on 15 March 2010. Mr Elliott did not attend and was not represented. A short hearing then ensued at the conclusion of which the judge granted a permanent injunction, dismissed Mr Elliott's counter-claim and made a general civil restraint order.

After more than 8 months Mr Elliott applied to set aside that judgment relying to some extent on his alleged mental health difficulties to explain the delay. Sharp J granted his application on that basis coupled with his ignorance, as a litigant in person, of the availability of an application to set aside.

This decision was overturned on appeal. Kay LJ gave the only judgment of the Court of Appeal. His comments at paragraph 32 are of particular interest:

"I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. . . . the fact that a litigant in person "did not really understand" or "did not appreciate" the procedural courses open to him for months does not entitle him to extra indulgence. . . . [Sharp J] regarded this to be "a special case on its facts" but it could only be considered such if one goes too far in making allowances for a litigant in person."

The full judgment merits consideration. This case ought to be added to the armoury and is likely to be wheeled out whenever a litigant in person seeks indulgence from the courts.

Matthew Winn-Smith / 1st Nov 2012


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