A freezing order had been served on the respondent bank in respect of a person with whom the claimant held a joint account. The bank relied on its contractual rights to do so in their standard conditions. The freezing order was set aside, but the claimant said the bank had acted unlawfully and negligently, but the pleadings did not reflect this element. The claimant said that it was his duty to put forward the facts and the court’s duty was to apply the law to them. He declined to amend his pleadings to add either a claim in negligence or ato plead a human rights claim. The court declined to hear the claim in negligence, and the claimant appealed.
Held: Though understandably, the court had erred. The claimant had not abandoned his claims, and the case was remitted to be heard before a different judge.
Rix LJ said:’Litigants in person, with which these courts are entirely familiar, are of course deserving of the court’s sympathy for the difficult role that they must fulfil as non-experts in the law, and of course they also need and deserve help and support as traditionally has always been given them not only by the court but also by opposing counsel, as is understood to be their duty. Nevertheless, this was not a complex matter. Mr Nelson is clearly an intelligent man and – indeed, as we know from past litigation with which he has been concerned and which is mentioned in the bank’s skeleton argument – a very experienced litigator in person over a great number of years. For this court simply to insist that Mr Nelson’s claim must be tried as a claim in contract when Mr Nelson is telling the court repeatedly that he does not have a claim in contract, is, it seems to me, for this court to override the autonomy of the litigant. I say that, as I have made clear, even of the litigant in person. One does not know, and, subject to limits, one is not entitled to enquire, why a litigant takes one course rather than another. It is often the case that the courts look with puzzlement at decisions of litigants, even those advised by senior counsel. Ultimately, however, once the court has made proper enquiries on behalf of a litigant in person the court must, it seems to me, respect the autonomy of the litigant. ‘
Judges:
Sir Andrew Morritt VC, Rix LJ, Rimer LJ
Citations:
[2008] EWCA Civ 1016
Links:
Jurisdiction:
England and Wales
Banking, Litigation Practice, Human Rights
Updated: 19 July 2022; Ref: scu.276400