No relief for being a litigant in person – Chadwick (trustee in bankruptcy of Anthony Burling) v Burling [2015] EWHC 1610 (Ch)

jonathan_holsgrove_pi By Jonathan Holsgrove

In Chadwick, the appellant former wife, Mrs. Burling, appealed against the order of a Deputy Registrar dismissing her application for relief from sanctions for failing to file evidence in accordance with an earlier order. Mrs. Burling was seeking to defend applications for possession of two properties made by the trustee in bankruptcy of her former husband.

The Court had made an order requiring the Burlings to file evidence in response to the trustee’s applications for possession by a set date and in time for the next hearing. Mrs Burling had failed to attend the hearing where the order was made but did receive a copy of it. However, she failed to file any evidence as ordered by the deadline. Subsequently, she sent some written evidence to the trustee’s solicitors who refused to accept it because it was served late. The solicitors set out to her in a detailed letter why they were not accepting the documents and what Mrs. Burling should do to get permission to rely on the documents. Mrs. Burling did not do any of what was suggested and instead, armed with a carrier bag of documents, attempted to present them to the Deputy Registrar at the next hearing. The Deputy Registrar refused to allow the evidence to be used at the hearing and did not grant Mrs. Burling relief from sanction. After applying stages 1 and 2 of Denton the Deputy Registrar was not satisfied that the documents made out any defence to the claims for possession and that stage 3 of Denton was not made out either.

Mrs. Burling appealed on the grounds that the Deputy Registrar had erred in failing to properly apply the third stage of the Denton test, to evaluate what is just in all of the circumstances of the case. This failure had disproportionately impacted on her right to pursue an interest in two valuable properties when compared to the delay / costs that the trustee would incur.

The appeal came before Mr. Justice Warren. The judgment sets out the law relating to CPR 3.9 and reminds the reader that, following Nata Lee v Abid, the fact that Mrs. Burling was a litigant in person was no reason for the disapplication of the CPR. Mr. Justice Warren held that:

  • In respect of one of the properties the Deputy Registrar had erred in principle by considering the evidential merits of the case as part of stage 3 of Denton. This gave the impression of a failure to properly apply stage 3 of the Denton
  • Rather than remit the case the appeal court was entitled to undertake the Denton test and relief should not be granted.
  • In respect of the second property the Denton test had been properly applied.
  • The orders were sufficiently clear and the trustee’s solicitor had fully explained them to Mrs. Burling yet she had done nothing. There was no excuse for her failure.

In conclusion Mr. Justice Stewart offered this guidance as to the approach of relief from sanctions involving litigants in person:

It seems to me that the only potential answer to this [for her failure to comply] is that Mrs Burling is not simply a litigant in person but is also an individual who is ignorant of the system and how she is supposed to operate within it. It cannot be right, however, that the court must enquire into the state of knowledge and intellectual capacity of a litigant in person who says that he or she did not understand the process or realise that he or she had certain substantive rights (and so did not serve evidence to support a claim to those rights) (although there may be cases where it is obvious on the facts that this is so and can be taken into account). Although the fact that an individual is a litigant in person can be a relevant factor, this, I agree, is only at the margins; typically this might be so where there is some extremely complex factor or complicated order which any lay person might find it difficult to understand.”

For practitioners everywhere this case shows the change in attitude the Courts now have towards the conduct of litigants and person following Mitchell and Denton. Hopefully, the days of a hearing being hijacked by disclosure by carrier bag are over!


  1. […] My colleague Jonathan Holsgrove on No relief for being a litigant in person. […]

  2. […] Jonathan Holsgrove considered another case of a litigant in person being refused relief from sanctions in No relief for being a Litigant in Person – Chadwick (trustee in bankruptcy of Anthony Burling)… […]

  3. […] Holsgrove considered another case of a litigant in person being refused relief from sanctions in No relief for being a Litigant in Person – Chadwick (trustee in bankruptcy of Anthony Burling) v B… (June […]

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