In this post, Helen Waller writes about dealing with litigants in person in clinical negligence cases, considering the recent case of Doyle -v- Habib [2021] EWHC 1733 (QB).
Although not a common issue in the world of clinical negligence litigation thanks to the wide availability of no-win-no-fee representation, on occasion one does come across a claimant (or, sometimes, another party) acting as a litigant in person (“LiP”). Having one party representing him- or herself can fundamentally impact the course and manner of the litigation, especially for the opposing party.
It is well known by now that the courts must apply the same standard for compliance with rules or orders to litigants in person as they do to represented parties (see Lord Sumption’s judgment in Barton v Wright Hassall LLP [2018] UKSC 12). However, many of us have more than one example post-Barton of a first instance court affording lenience to a litigant in person to a degree to which one would not expect a represented party to enjoy. This is perhaps a fair reflection of the considerable difficulties a lay person might encounter when trying to navigate court proceedings.
The other side of the coin is that when defending a claim brought by a LiP, more is expected of the defendant. When balancing duties, the duty to the court is of course paramount. So the representatives of a defendant to a claim brought by a LiP will typically find themselves having to step up and assist the court with things that a claimant might usually do, such as drafting case summaries or preparing bundles. It goes much further than that though. The SRA handbook provides that a solicitor must ensure that unfair advantage is not taken of an opposing party’s lack of knowledge where they are a LiP. So the usual – and often quite interesting – strategic and tactical play has to be set to one side. The BSB handbook specifically reminds barristers that when against a LiP it is particularly important to draw to the attention of the court any decision or provision which may be adverse to a client.
Looking practically, legal representatives will want to ensure that they maintain good communication with the LiP, using clear, non-legal jargon both in correspondence and in hearings. Communication with a LiP can be particularly challenging, as, without a solicitor as a buffer, there is often a great deal of emotion coming from the LiP when handling the claim. Legal representatives need to be prepared to assist LiPs at hearings, particularly in identifying the claims and/or issues being advanced, because pleadings drafted by LiPs are often poorly formed and unfocussed. Advanced notice should be given of any applications. This will serve not just to reduce the objections of the LiP, but it will also help reduce the need for adjournments and any adverse costs orders that might accompany them. Indeed, where a represented party fails to comply in any way with rules, practice directions or orders, if the other side is a LiP, then the represented party should perhaps be prepared to be given more of a rough time by the court for such a failure.
A particular difficulty for both the courts and other parties when faced with a LiP in the clinical negligence context is that these cases often rise or fall with their expert evidence. The importance, therefore, of choosing the right expert disciplines and complying with all rules and orders in respect of expert evidence is particularly acute.
A recent example of a LiP in a clinical negligence action is the case of Doyle -v- Habib [2021] EWHC 1733 (QB). In this case, the Claimant, Ms Doyle, represented herself in an action against a consultant liver surgeon, Professor Habib. The claim was based on allegations of misdiagnosis and negligent advice to undergo surgery. In a similar manner to another recent clinical negligence claim in which the claimant was a litigant in person, Baidoo -v- Barking, Havering and Redbridge University Hospitals NHS Trust [2020] EWHC 3912 (QB), the claim failed on its lack of appropriate expert evidence.
In Doyle, a Master had ordered that permission be given for the Claimant to rely upon a report from “a consultant hepatobiliary surgeon or physician” and for the Defendant to rely upon a report from a consultant hepatobiliary surgeon, Mr Brooks. The Claimant served a report from Professor Williams, a Professor of Hepatology, an eminent hepatologist but not “a consultant hepatobiliary surgeon or physician”. At trial, the Defendant submitted that Professor Williams’ opinion was not admissible as expert evidence since he was not qualified to give evidence on the matter in question, that being whether it was a breach of duty to have advised the Claimant to have liver surgery. That was a question for a liver surgeon, not a hepatologist, distinguished though he was.
The Court found that the Master’s order should have referred to a hepatologist and it was intended to encompass the Claimant relying on Professor Williams as an expert. The Defendant had been professionally represented throughout, and, if he took issue with the Claimant’s reliance, he could have addressed that before trial. The court was, no doubt, right to make that observation in the circumstances, but one wonders if the same would have been said if the Claimant had herself been represented. Nevertheless, it was held that “Professor Williams would not be as well placed to opine on advice about whether or not to recommended surgery, as a surgeon” (at [126]). That significantly and detrimentally affected the weight that the Court afforded to Professor Williams’ report. The evidence of the Defendant’s expert, Mr Brooks, was afforded considerably more weight by the Court, and found to be persuasive on breach of duty, and, thus, the claim failed.
Overall, litigants in person require more and perhaps different attention from represented opponents. In the legally and medically complex field of clinical negligence, it is particularly important that a represented party does not take unfair advantage of an unrepresented party’s lack of knowledge, or their lack understanding of the differences between related medical sub-specialties (as in Doyle). However, nor must the represented opponent present the LiP’s case for him or her, so there is a fine balance to be struck.
In particular, the importance of clear and dispassionate correspondence cannot be overstated. It makes litigation far simpler if all parties agree on what the issues in dispute are. Any attempts at forceful or aggressive correspondence are likely to be met with hostility by a LiP, who may already be very emotionally invested in the case. Such correspondence may well add to an existing sense of grievance, arising not only from the alleged wrong, but also from any denials or rebuttals put forward by the represented party. Correspondence striking the wrong tone is likely to shut down avenues of communication, and make future correspondence and agreement between the parties far more challenging. Further, as in Doyle, raising nuanced procedural points against LiPs is likely to result in the represented party incurring time and effort for little gain. Therefore, it is suggested that, when opposing a LiP, to pick points of dispute (and particularly procedural ones) wisely.
Clinical Negligence Law 