Assisting Litigants in Person? Know your stuff!
- By James Ferguson
Courts often extend a certain latitude to litigants in person to ensure that an otherwise unrepresented party is still afforded access to justice.
However, the High Court in Dublin was recently critical of a third party purporting to assist one such litigant where “…it clear that he does not know what he is doing.”
In 2003, the plaintiff, a self-styled “gentleman and painting contactor”, and his then partner (the defendant) entered into a mortgage agreement with Irish Permanent plc over a 17-year term. That debt was later sold to another company, Havbell DAC.
The plaintiff claimed that the defendant had agreed to redeem the mortgage at the end of the term using the proceeds from a pension fund. He sought to compel her to do so.
In June 2021, the plaintiff left copies of proceedings at the offices of the defendant’s former solicitor. The solicitor had not indicated that they had authority to accept service on behalf of their former client.
No appearance was entered. In August 2021, the plaintiff sought default judgment.
Again, this was sent to the defendant’s former solicitor, who returned all papers pointing out that they were not instructed.
[The plaintiff’s] case is that he has been extensively litigated against by Havbell. It is a matter of public record that he has been embroiled in litigation with Havbell for upwards of four years. I think that it is fair to say that [the plaintiff] has been no more litigated against than litigating.
Mr Justice Allen observed that “[t]he papers are rather a jumble and [the plaintiff’s] narrative in the affidavit grounding the application is less than entirely clear.”
Further, the plaintiff disputed that Havbell were the new owner of the mortgage whilst seeking an order compelling the defendant to discharge same.
The proceedings left at the defendant’s former solicitor in June 2021 had not been “served”. In October 2021 the High Court issued an Order “...permitting service of the proceedings by ordinary pre-paid post, by text message to [the plaintiff’s] mobile phone, and by e-mail to [the plaintiff’s] e-mail address”. The Court was not satisfied that proceedings had been served on the defendant. “The onus is on the applicant to prove service.”
On the advice proffered by the third party, Allen J. noted:
To a greater or lesser extent, this case should serve as a further reminder to litigants in person to beware of unqualified persons holding themselves out as being in a position to assist.
I need to add a postscript. [After the hearing], I received a letter from [the plaintiff] apologising for his incomplete booklet and enclosing a supplemental affidavit which he swore and filed [the day after the hearing]. [The plaintiff] is a seasoned litigant. I find it hard to credit that he is not perfectly well aware that it is quite improper for any litigant to attempt to communicate with a judge otherwise than in open Court. If he did not previously know this, he does now.
He who represents himself has a fool for a client.Abraham Lincoln (1809–1865)
It is not known whether Lincoln offered any further opinion on the capacity of an unqualified individual advising a litigant in person.