Treading carefully against a litigant in person

In this case, our team acted for the Defendant, who were the owners of a farm and employed the Claimant.

The situation

The Claimant was employed as a General Labourer with a variety of different roles and responsibilities, all of which varied on a daily basis, which is typical of the agricultural sector. On the day in question, the Claimant was asked by the owner of the farm to assist him with the replacement of a part on a large baler machine.

The Claimant alleged that during the process of the part replacement, he injured his back and it was due to the Defendant’s negligence in forcing him to carry out a manual handling task without the correct health and safety procedures being followed. The Claimant claimed that he was unable to work for the remainder of his working life and submitted a claim with future loss of earnings, future care and other associated future losses, placing the value of his claim well in excess of £500,000.

The Defendant’s response

In response, we argued there was no doubt that the task in hand did involve manual handling, the actual handling aspect did not involve heavy lifting and what the Claimant was asked to do, was in effect use work equipment including trolley jacks, straps and metal bars, to assist in the part replacement. The task was more ‘fiddly’ than heavy and with the use of the tools at our disposal, the Defendant had carried out the relevant risk assessment and adopted a safe method to change the particular part. The Defendant maintained throughout that there were no breaches of health and safety regulations; an argument that was consistent all the way through to trial – four years after the claim was first initiated.

Obtaining evidence

To get a better, more informed understanding of the activity that the Claimant was asked to undertake, we obtained witness evidence from a local dealership, outlining exactly what they would do if they were asked to replace the same part of machinery. The witness was unequivocal in their opinion – that the method adopted by the Defendant was not unsafe.

Both parties obtained expert engineering evidence, with numerous site visits and inspections of the machinery and the part, as well as the process that was carried out to change the part.

What happened next?

Seven days before trial, and after witness statements and expert evidence had been exchanged, we made an offer to the Claimant’s solicitors, for the Claimant to discontinue his claim on a “drop hands” basis. The Claimant refused our offer, followed by an application from the Claimant’s solicitors to come off record as acting for him – effectively, they were fired, rendering the Claimant a Litigant in Person (LiP). The case then proceeded to trial.

When a Claimant becomes a LiP, it is important to take extra measures to ensure that the parties have an equality of arms, administration of justice is carried out and the Claimant is not disadvantaged in any way, by not having legal representation. Whilst we would under no circumstances seek to ‘advise’ the Claimant, it was important to set his options out and then for the Claimant to make his own decisions.

The trial began as normal, but after a review of the papers the Judge took the view that the parties should ‘consider their options further’. After a further four or five hours of round-table discussions, and with some careful persuasion, the Claimant accepted our previously-refused offer. The trial Judge was very complimentary about the way in which the trial was conducted by the Defendant’s legal team – especially in light of how the Claimant became a LiP so late in the day.

In these scenarios, it is important to protect yourself in a “their words against yours” scenario, which can so easily occur in these situations. We ensured that all communication was documented and witnessed by at least 1 person on each side, in addition to the lawyers.

With fixed costs and track level increases beginning to bite, we may see far more LiPs in the civil courts than ever before. The sooner Defendant lawyers learn how to interact and engage with LiPs, the better.