Friday, 12 October 2012

Law Report - Litigants in person - costs and case management

Junos v Minister of Tourism & Transport [2012] Bda SC 55 Civ

Another judgment relating to litigants who represent themselves. See here for the previous judgment in Junos' ongoing litigation.

The applicant was attempting to clarify the rules for litigants in person ("LIPs") claiming their costs when successful.

Kawaley CJ held that a distinctive case management approach may be required with LIPs to ensure that their fair trial rights are adequately met [7]. The court has to tread a line between efficient case management where LIPs are unaware of court procedures and may lack the mutual trust that opposing lawyers share; and ensuring that LIPs feel their case is heard fairly [8].

The court will often have to devote more time to hearing a LIP's side of the case, as they often do not present it in the most effective manner. If their case is ultimately unmeritorious, the other side will recover the costs of the increased amount of time required. If the LIP is successful, the other side has the comfort that the LIP recovers costs on a reduced rate to make up for the increased time spent [9].

Where a LIP has suffered financial loss in preparing his case he will be able to recover 2/3rds of what an attorney would have charged [14]

Where a LIP has suffered no loss in preparing the case, they will be able to recover a discretionary rate of no more than $50 per hour. The time allowed is based on how long it would have taken an attorney to do the work, uplifted to allow for the LIP's inexperience. However, it is still subject to the cap of 2/3rds of what an attorney may charge for the item. [14]

Great care is required in applying the English rule that lawyers cannot charge for research time in the Bermudian context, taking into account the lack of local academic and vocational legal qualifications and the limited availability of practicioners' texts. [19]

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