UK: Extempore Reprieve For Litigant In Person Appealing Strike-Out

The Supreme Court decision in Barton v Wright Hassall provided clarification on how litigants-in-person should be treated in the civil litigation process.

Lord Sumption made clear in Barton that giving one particular class of litigant additional indulgences was unreasonable, yet emphasised that the framework of proceedings needed to provide a balance of fairness to both sides.

A recent decision has provided further insight into when the courts may justify giving leeway to an unrepresented claimant.


The Claimant had initially failed to comply with an unless order requiring disclosure of documents. An application for relief from sanctions was refused resulting in his defence being struck out and judgement entered against him. The Judge gave an extempore judgement in January 2019 at a hearing in which the Claimant was 'informally' represented.

The Claimant wished to appeal the decision. A party usually has 21 days after the decision to file an appellant's notice seeking permission (unless the Court specifies otherwise). An approved transcript or note of an extempore judgment is not usually available within this timescale.

Practice Direction 52B 6.2 states that nonetheless the Claimant should have obtained a transcript as soon as possible and within 7 days of the filing of the appellant's notice at court.

Where the judgment has not been officially recorded or handed down in writing "the appellant must cause a note of the judgment under appeal to be made and typed. The parties to the appeal should agree the note, which should then be sent to the judge of the lower court for approval. The parties and their advocates have a duty to make, and to co-operate in agreeing, a note of the judgment."

The Claimant stated that he did not understand that the judgment being given extempore meant that there would not be an officially recorded copy available. He emailed the court in April hoping to receive a copy and visited the court. When it became apparent a copy was not available, he took further steps and obtained a written draft of the judgment on 21 June.

The Claimant made a subsequent application for an extension of time to make the application. He argued that he had been unaware that an official copy would be unavailable. He also claimed that he had been unaware of the initial unless order.

The Defendant argued that an extension of time should not be granted as the procedural history showed serious defaults by the Claimant.

The Court ultimately took a lenient approach and allowed the Claimant one further opportunity. An extension of time was granted and the application for permission to appeal was listed as an oral hearing.

What can we learn?

  • Lord Sumption in Barton stated that the "lack of representation [for litigants in person] will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court." It would arguably follow that the Claimant's application for an extension of time should have been dismissed.
  • The rules regarding the conduct of an appeal per Practice Direction 52B Section VI states that the Claimant should have obtained any note prepared by his 'informal representation' or from the Defendant. The content should have been agreed and sent to the judge for approval. The Claimant did not do this. This was not an issue of case management, but a rule to be complied with.
  • However, the decision to grant the extension is not unreasonable when considering the circumstances.

    • The Claimant had made clear efforts to obtain a draft of the judgment, contacting and attending the Court requesting a copy.
    • The Claimant's representation was 'informal' suggesting that it was solely for the purpose of the hearing and not for continuous assistance with the appeal process.
    • The circumstance in which the judgment was given (on an extempore basis) is arguably not clearly defined within Practice Direction Section 52B Section VI. The section refers to:
  1. a judgment that has been officially recorded
  2. a judgment that has been handed down in writing
  3. any other case

It is arguable that an unrepresented party would be unable to identify the difference between them.

  • The decision is a useful marker in respect of how the issue of compliance by unrepresented claimants will be addressed by the Court. It also serves a general reminder for all litigants to be familiar with the rules and general practice of conducting litigation, including appeals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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