When dealing with a Litigant in Person (LIP) there are four major personas to look out for. At the recent Bar Association of Queensland Annual Conference, Bernard Porter, QC [now Judge Porter] spoke on the topic of Advocacy and the Litigant in Person. He outlined the legal and practical issues that arise for advocates when the opponent is a LIP.
"More common is the querulous litigant driven by a personal grievance, real or imagined. The obsessive grievance often emerges from the failure of some grand financial scheme or the loss of face as a result of failed financial dealings. This kind of LIP has to be treated with particular caution by the advocate, both outside Court and before the Court."
Judges have to be careful about making public statements on current issues that may allow claims of bias. There can also be matters in which judges were involved as lawyers before they were appointed that can later lead to bias claims.
Mrs Thomson, a litigant in person (LIP) challenged, unsuccessfully, the independence of the Judge hearing her matter on those two bases, that, as a barrister:....
She claimed the Judge’s conference paper said that LIPs...
‘were not in touch with reality, and remain insane for the bulk of their life because they hold on to grievances for losses that are not real; and compared them to Don Quixote, fighting their opponents on fantasised images or suffering from pathological symptoms like schizophrenia, where 150 years of medical research into querulous paranoia has not provided any true pathological reason for that querulousness’.
Reasons for self-representation
• Most litigants in person in the Family Court of Australia (FCA) do not have legal representation because they cannot afford it, although a significant minority said that they did not need, or did not want, to be represented by a lawyer.
• Many litigants in person who said they did not want or need a lawyer exhibited high levels of distrust of lawyers and the legal profession.
• Recent changes to legal aid have intensified what was a pre-existing trend towards self-representation. Just under half of those in our sample who had been refused legal aid were refused on grounds that are attributable to the 1997 change in legal aid guidelines.
• A significant minority in our sample had not applied for legal aid at all, because they had been advised that they were ineligible. The size of this group, which was comparable to those who had applied but been refused, is striking, and suggests that official legal aid refusal rates should not be taken as an accurate guide to the availability of legal aid in family law matters.
The querulous litigant has been described by one psychiatrist in the following terms:
"At times, these chronic grumblers may become ‘querulant’ (morbid complainants). In general, they have a belief of a loss sustained, are indignant and aggrieved and their language is the language of the victim, as if the loss was personalised and directed towards them in some way. They have over-optimistic expectations for compensation, over-optimistic evaluation of the importance of the loss to themselves, and they are difficult to negotiate with and generally reject all but their own estimation of a just settlement. They are persistent, demanding, rude and frequently threatening (harm to self or others). There will be evidence of significant and increasing loss in life domains, driven by their own pursuit of claim. Over time, they begin to pursue claims against others involved in the management of claims, be it their own legal counsel, judges and other officials. While claiming a wish for compensation initially, any such offers never satisfy and their claims show an increasing need for personal vindication and, at times, revenge, rather than compensation or reparation.
Despite 150 years of psychiatric research into querulous paranoia, there is no consensus as to the underlying pathology. Theories range from an underlying organic disease process, similar to schizophrenia, through to psychogenic processes; that is, certain vulnerable characters are sensitised by certain life experiences and are then struck by a key event which triggers their complaining. Preceding the querulousness, they have often received some form of blow to their individual sense of self-esteem or security. This was often in the nature of a loss of relationship, through separation or death, ill health or loss of employment....."
Litigants in person and how technology may help to reduce the financial burden on litigants.
More than four in ten applications to the civil division of the Court of Appeal now come from litigants in person....
One move that promises to bring down the costs of litigation is moving further towards digital justice systems. This refers to the development of methods to utilise digital technology to make claims and to conduct hearings, some of
which are discussed below. Such systems may also make it easier to proceed as a litigant in person where one wishes to do so – for the “type of disputes that the digital economy is noted as generating…low value, consumer disputes”,
as Sir Thomas Etherton put it, this may be the best way to proceed....
"The proportion of applications to the Court of Appeal for permission to appeal by litigants in person (LiPs) has gone up by 50% in the last 10 years, the Master of the Rolls has said.
In a wide-ranging speech on civil justice reform after the retirement of Sir Rupert Jackson, Sir Terence Etherton also said the judiciary was considering “the facilitation of settlement” of claims in the Online Court, though it was yet to feature in the pilot schemes...."
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I fought the law: meet the super-litigants
Some people who represent themselves in court spend months, even years, battling for justice. So why do they go on? Here are four who refused to give up...
“I used to be terrified of going to court,” says Elizabeth Watson, “but I’ve had no option. Like most litigants in person I was forced into it.” Bournemouth company director Watson is fighting the Bank of Scotland for her home. The bank says she owes them more than £345,000. She says she doesn’t owe them a penny. “Something like this – it comes in and it invades your life,” says Watson. “It dominates the landscape. It’s like a rotting corpse.”