I read with great interest a post by my colleague, John Bolch of Family Lore, and its reference to the phrase “blood on the court carpet”. It was drawn from a comment originally made by District Judge Nicholas Crichton, who sits in Inner London and whose concern about the growing numbers of litigants in person and their attitude to litigation is reported in the Law Society Gazette. The Judge describes the current situation as “horrendous” and goes on to say:
“We are getting more and more people coming to court in private law cases without the benefit of sensible, structured legal advice, wanting to spill blood on the court carpet. Angry with each other, they shout across the court, they refuse to listen when you try to calm them down and it is very difficult to find a solution that they will go away and work with.
“The government wants people to stay out of court but it is very difficult to get people to mediate when they are still very angry and haven’t had the benefit of decent legal advice. These cases take an inordinate amount of time, which is having a knock-on effect on public law cases getting before a judge”.
For an experienced and well-respected senior judge to make those comments publicly, in a professional journal, the situation must have reached crisis point and children caught up in public law cases are suffering the backlash.
As practitioners, we all know that representing a client against a Litigant in Person (LiP) is very difficult. The judge has to be seen to be neutral but always needs to keep addressing the general ignorance of law and practice, language and conduct of the LiP – who is not bound as legal representatives are by the professional conduct rules. No wonder these cases are blocking all the court lists. It has a knock-on effect too because clients who do pay for legal representation perceive themselves to be at a manifest disadvantage, constantly noting the courtesies that judges extend to self-representing parties.
Cases that might normally take fifteen minutes can turn into hours. Plus the number of these cases is growing, which is frustrating the judges. When unrepresented litigants finally get to trial, the judge is then left with possibly the worst job of all, dealing with running the entire case.
So why are there such a growing number of unrepresented litigants? You might assume that given the economic gloom, people assume that they can’t afford a lawyer – a situation that isn’t helped by diminishing eligibility criteria for legal aid. But I have another explanation. I wonder whether inadvertently, the judiciary in supporting changes to the costs rules, might not be responsible for their own misfortune.
The ‘No Order’ principle.
The removal of the costs risk from private family law cases, has also removed lawyers from many cases. Some may say it’s a good thing. Although I suspect most judges and all LiPS forced into litigation who would instruct a lawyer if there was any prospect of recovering their expenditure, would not share that sentiment.
In children cases, the ‘No Order’ principle is routinely applied. Each side pays their own costs except in the most exceptional of circumstances. But why? I understand that people should have unhindered access to the courts when it comes to their children and I also accept that in most cases, one parent is usually as concerned as the other; but costs risks can be a powerful deterrent against frivolous actions by both parties.
If at risk of a substantial costs bill from both sides, parents may conduct themselves better and settle faster. Conversely, given the lack of a costs risk, more applications are being made to clog the courts and fewer litigants in children cases are minded to instruct solicitors; they argue there is no point if they can’t recover costs and if the judges are so obviously patient in assisting LiPs.
In 2006 the costs rules relating to finances were also changed with judicial support and encouragement. The “No Order” principle was introduced. The court still retained discretion to make costs orders in certain circumstances, but in general it was intended there would be no order for costs – each party would pay their own costs.
Some had argued for such a change in the interests of fairness and simplicity, the costs of both parties should thereafter come off the top slice of the family’s assets and the rest could be divided between them. Others supporting change argued that the system encouraged secret offers that the judge did not hear about until after the hearing and therefore caused unfairness to the parties, particularly to husbands. A senior costs judge also expressed his concerns that: “The successful spouse on one side vows to bleed the other dry of any penny if at all possible, while the paying spouse goes out of his way to deny the other the possibility of any recovery”. Solicitors apparently had “a vested interest in maximising the costs recoverable from a paying party”.
However, from my perspective, offers of settlement before trial undoubtedly had teeth. Both the settlement and the costs of the action depended on the outcome. All offers post the trial would be carefully scrutinised by the trial judge. If the “winner” beat their own offer of settlement, they could expect their costs to be paid on an indemnity basis and recover virtually every penny they had spent. If the winner beat the offer made by the losing party, around two thirds of the costs would be repaid. So the risk in costs for the losing party was very real on both sides. It concentrated the minds of both parties, neither of whom could be oblivious to the serious risk they were running.
Unfair to the weaker party
The changes, although well intentioned have probably caused as many problems as they sought to resolve including an increase in the numbers of litigants in person. I have written before about the unfairness of the new costs rules: the weaker party is indisputably affected by the about-turn. A wealthier spouse can keep litigating, safe in the knowledge they may do better at trial and the only risk is his lawyer’s increased bill. He or she has no risk of paying two sets of legal fees which could affect their decision. If the spouse is well off, he or she may gamble it’s worth it. And for those who can afford to string out their case in a bid to outgun the financially weaker spouse and force them to settle, it certainly is.
The position is discussed in this month’s copy of ‘Family Law’ in relation to the provision of interim funding, through interim costs orders, by the wealthier party to the other, a practice which has arisen since the case of AvA (Maintenance Pending Suit: Provision for Legal Fees) (2001 ) 1 FLR 377. The unsatisfactory position which has resulted has added still further to the problem, not least since interim orders usually stop after the FDR and before trial. This has occurred since the case of Currey v Currey (No 2) (2006) EWCA Civ 1338. Furthermore, the FDR Judge may not extend the order to trial, which is the role of a Judge not connected with the FDR. More time, more costs, more pressure.
The weaker spouse is now in the invidious position of being forced to litigate at greater cost, which they won’t recover, if they refuse a low and clearly inadequate offer. Although the court could make an order for costs at trial in those circumstances, it often does not. In those circumstances, the weaker spouse may feel they have no choice but to settle. If they continue with litigation, they will still have to pay increased costs that will be taken from whatever they receive. Like an increasing number of people, including many readers of this blog, they decide to go it alone and see how they fare in court.
The “No Order” principle for financial cases became enshrined in Part 28 of the Family Procedure Rules 2010. The wider powers to make costs orders if the court is inclined are at Rule 28.3.7, as mentioned in my earlier blog post on the subject. Post 2006 there were expectations that costs orders would be made in appropriate cases, the courts are generally not doing so. Constrained by the “No Order” principle, my experience is that costs orders are rarely made in the average case. This encourages more litigants in person who understandably see little reason to pay lawyers if there is no prospect of a costs recovery. And this is, I suspect, the real reason for the “horrendous” situation of which District Judge Crichton complains.
But all may not yet be lost. There is hope on the horizon in the form of Family Arbitration for financial claims in family law which begins on 22nd February 2012. Cases may be resolved out of court and will be legally binding on the parties. Yet arbitrators need not be constrained by the same lengthy procedural process as judges. The cases they deal with are expected to be dealt with more quickly and in many cases more cheaply. How the costs are to be dealt with too, is up to the couple involved.