Unrepresented litigants and the court’s leniency

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This is an adapted translation of a Chinese piece I wrote and published in the Sing Tao Daily newspaper on 4 February 2014:

Not only must litigants deal with the challenges arising from the legal merits of their cases, they must also comply with court rules and procedures. What forms and documents must be submitted at what stage of the proceedings? And what are the time limits to do so? What kind of evidence is prohibited or unacceptable to the court? Professional advice should be sought to answer technical questions. However, a litigant may be indigent and fail to obtain Legal Aid to prosecute or defend a case. Alternatively, it may be impractical to seek professional advice in certain urgent or temporary circumstances. Indeed, a litigant is constitutionally entitled to come before the court unrepresented as a pro se litigant or litigant in person (“LIP”). We will focus below on civil litigation, but similar principles apply to criminal litigation.

The pertinent question is: would the court relax the rules and procedures for LIPs? Generally, the answer is no, but exceptions may apply, depending on the circumstances of the individual case. The Judiciary must maintain impartiality in adjudicating disputes. Courts cannot give legal advice to litigants or comment on the merits of cases. Yet, in court hearings, it is not unheard of that judges provide some procedural guidance to LIPs. In Hong Kong, there is no comprehensive set of rules governing the treatment of LIPs. In principle, litigants, whether represented or not, are subject to the same court rules and procedures. After all, ignorance of the law is no excuse.

Nevertheless, past judgments have affirmed that LIPs should not be judged against professional standards in their handling of litigation processes. The court’s application of its own procedures could take into account “good reasons” for leniency. Similarly, leniency may be shown where the judge can exercise judicial discretion. What constitutes a “good reason” again depends on the circumstances of the case. For example, minor failures in meeting documentary formalities due to the lack of legal representation may be excusable, whereas undue delay in filing court documents and missing court deadlines may rarely be excused, even where there is genuine inadvertence. This is a fact-sensitive matter.

The LIP should not benefit from extra indulgence merely because of his lack of legal representation. The court cannot ask itself whether the LIP could have avoided the relevant procedural breach, if properly advised. Rather, the courts only treat the lack of representation as one of many factors to be considered for discretionary leniency, not the sole and determining factor. Moreover, any consideration of leniency should be weighed against any potential prejudice to be suffered by the opponent. Indeed, a represented opponent of the LIP is entitled to expect certainty in the application of litigation procedures.

It is not for the court to establish a party’s case. Meritorious claims that fail due to technical and procedural problems are unfortunate. So, it is vital for LIPs to clarify the requisite procedural steps and disclose all relevant documentary evidence upfront and on time. Any objection should be raised in a timely manner. The court is a place that promotes rational argument and amicable dispute resolution, so parties should present their grievances and points in a succinct and logical manner. In the High Court Building in Admiralty (Room LG105, Lower Ground Floor 1), the Resource Centre for Unrepresented Litigants support LIPs by providing information about general civil procedures. In addition, LIPs could seek help from various free legal advice schemes, including those provided by the Duty Lawyer Service, the Hong Kong Bar Association and the Law Society of Hong Kong.

Court rules and procedures must be applied fairly and equally to all litigants to uphold the integrity of the legal system. There is a growing number of LIPs appearing before courts. Systemically, the principle of equality of arms in litigation, and effective access to justice, should be best addressed by ensuring adequate litigation funding options and sufficient Legal Aid. The failure to follow court rules and procedures can affect the outcome of one’s case, and even one’s chances of appeal later on. The court could indulge procedural breaches in exceptional cases, but LIPs should not expect or feel entitled to court leniency. LIPs must therefore ensure that they can put their best case forward.

PS. I received a letter from the High Court of Hong Kong, which was issued in response to my Chinese piece and which asked me to take note of and promote the Two-year Pilot Scheme to Provide Legal Advice for Litigants in Person. So, here it is.

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