Statutory Provisions

The right of recovery of costs of a litigant in person is provided for by statute pursuant to The Litigants in Person (Costs and Expenses) Act 1975 (as amended). The costs allowed are the costs, expenses and losses in respect of any work done in the proceedings to which the order relates. With regard to disbursements, only out of pocket disbursements are recoverable. The provision applies to most tribunals and courts.

The is no definition of a litigant in person however Part 46.5(6) of the Civil Procedure Rules states that a litigant in person can include a company or corporation, a barrister, a solicitor, a solicitor’s employee, a manager of a body recognised under article 9 of the Administration of Justice Act 1985 (incorporated practices) and a person for the purposes of the Legal Services Act 2007, is entitled to conduct litigation.

The fact that a litigant in person is only represented for part of the proceedings does not preclude the recovery of costs for the aspect of work undertaken whilst not represented.

Quantum

Litigants in person may seek the recovery of costs in one of two ways, either by an hourly rate to reflect actual financial loss or on a fixed hourly charge. The hourly charge was £9.25 per hour until 1 October 2011 and thereafter, this was increased to £18.00 per hour. The maximum amount recoverable (excluding disbursements) is two-thirds the amount that would have been allowed if legally represented.

Any recovery for financial loss should be established by evidence and display that on the balance of probability loss has been suffered. In case of Mainwaring –v- Goldtech Investments Limited [1997] ALL ER 467, Mr Justice Robert Walker suggested that this is a subjective point and should be determined on a case by case basis commenting that ‘….a self-employed tradesman who in a small but profitable way of business who has more customers than he can cope with and can fill every working hour to advantage; at the other extreme, a retired civil servant with an index-linked pension who finds the conduct of litigant a more interesting pastime than bowls or crossword puzzles.’ It is clear that the courts job becomes extremely difficult when assessing financial loss.

In the case of Joseph –v- Boyd Hutchinson [2003] EWHC 413 the court considered the question of whether the conduct of litigation was undertaken during hours which the litigant in person was available to earn, is that sufficient or must a litigant in person go further? Mr Justice Patten suggested that the court should take a broad brush approach and not consider whether the litigant in person would have been engaged in other business. He commented that if the litigant was available during work hours then it can be assumed that he was able to work. However, even on this basis the litigant in person must show that he would have been gainfully employed and how much he would have earned. Displaying how much they would have earned is often the point litigant in persons claim for recovery of financial loss fails. If the litigant in person is unable to establish loss then the claim will fail.

If a litigant in person is seeking the costs of an application or trial then evidence to show actual loss should be filed and served at least 24 hours prior to any hearing. If the costs are to be dealt with by detailed assessment, written evidence should be filed with the notice of commencement.