Getting tough with litigants in person?

Family Law|December 3rd 2012

I’ve written more than once on this blog about the rise of the ‘litigant in person’ – people who appear in court with no legal team and represent themselves. Once a relative rarity, something strictly for eccentric amateur lawyers only, the numbers of litigants in person is widely expected to shoot up next year with the effective end of Legal Aid on March 31. Suddenly, the majority of people with everyday legal issues will be unable to afford a solicitor – and that certainly includes family law staples like divorce settlements and residence/contact with children. It’s already happening: according to a sad article in The Guardian today, hard-pressed advice centres across the country have begun turning away people seeking legal advice.

Legal circles are now braced for a flood of lawyerless litigants (estimated at over 200,00 by the Law Commission) and there is a lot of foreboding about the effect this could have on the courts. Despite their popular image as walking repositories of legal wisdom, judges do not know everything and rely, to a greater extent than you may think, on the barristers and solicitors before them to point out the relevant case law.
Most litigants will be quite unable to do the same and so judges will have to find the applicable law themselves, a potentially quite time-consuming process. I am sure we will also see cases being further slowed down by the need to explain developments and procedures to baffled litigants in person. The courts can seem both arcane and intimidating to the uninitiated – that is, after all, what solicitors and barristers are for: to provide expert guidance.

This is a recipe for tension. I have no doubt that most legal professionals will follow the guidance notes issued by the Law Society earlier this year urging solicitors to treat litigants in person “with courtesy” and in a “manner of which the courts would approve”, but if you are on the opposing side, how do you not try and take advantage of the litigant in person’s lack expertise in order to press your case? That is your job. Litigants in person too will also make allegations against the lawyers, the judge – anyone who doesn’t agree with them, usually because of a lack of experience and lack of knowledge of the law. Complaints against lawyers and judiciary I’m certain are due to rise.

Judges utmost professionals though most of them are, will certainly struggle at times with the problems caused by litigants in person. However in a fascinating defamation case last week,  Mr Justice Tugendhat turned his formidable attentions to this very question. In his ruling, the senior media judge noted that the claimant, Cornelius O’Dwyer, had told the court that he was:
“…a litigant in person with no legal training and will seek appropriate guidance and directions from the court.”

The judge went on:

“It is not uncommon for self represented litigants to invite the court to act as a source of guidance. The court is under an obligation to do justice…But the English legal system is adversarial. The court employs no legally qualified staff to assist the judge. Not only is the court without any means to provide such assistance, the court is also obliged to be impartial. A litigant who explicitly seeks the guidance of the court in the way that Mr O’Dwyer does is seeking what he may suppose to be free legal advice. But he is seeking it from a source which is unable to provide it, and it is certainly not free. The hearing before me has generated very substantial lawyer’s fees, and someone has to pay them.”

Mr Justice Tugendhat has a reputation for strictness and here he couldn’t have been tougher. In these incisive comments, we see a bright spotlight being shone onto a fundament problem with the litigant in person helplessly throwing him- or herself on the mercy of the courts. The courts are an adversarial system. Judges aren’t there to help, assist and advise one party. That is wholly at odds with their function. And this particular litigant in person with his obviously hopeless case got very short shrift indeed. If he was expecting sympathy, he got none whatsoever.

Yet family judges, on the other hand, are currently being placed into an intolerable situation, unlike their brother judges in the civil courts. Like it or not, because family law requires consideration and care for both sides, and a duty to adjudicate an outcome which is fair to both sides as opposed to making a finding for one party against the other, the judges are, like it or not, having to adopt a more inquisitorial approach – to elicit the facts from both parties, and then adjudicate an outcome. They are at the same time, making a rod for their own backs, as more litigants turn up completely clueless about their legal position and many will begin to litigate hopeless cases that lawyers would have weeded out and never brought near to a court door, let alone inside it.

As civil judges at the highest levels have pointed out more than once, the Family Division is part of the whole court structure. The Family Division does not stand alone. So, is it right for family judges to be forced to become more inquisitorial in an adversarial court system? Are they actually being required to take on too much?

Should they not be adopting a rather more forthright position akin to Mr Justice Tugendhat, but not to the hapless litigants before them but rather to the Ministry of Justice?

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(32)

  1. Michael Robinson says:

    I’m not sure if you saw, but the Government’s new app, and seemingly their resolution to this issue was to provide the advice that is mediation doesn’t work, parents should see a solicitor.
    It may be that because 73% of politicians are millionaires, they don’t understand that some parents can’t afford a solicitor… some… well, another 45,000 after the legal aid cuts bite (according to the Government’s own impact assessment – and this just in private family law proceedings). I understand the Government spent £300,000 on that app.
    I’ve developed a family law app for litigants-in-person and lay advisers, but there remain people who don’t have internet access, or a pc and who aren’t technologically capable. There are adults with dyslexia, where without help, the courts will become closed.
    Family law is complex. The language is complex, and as you so rightly say, counsel advises the court on the law. We believed there would be no practical thought as to solutions and tools by the Government, so have worked for the past two years on an information safety net.
    For those who need information, my app can be accessed at http://www.thecustodyminefield.com/mobile/familylawmenu.html.
    Michael Robinson

  2. JamesB says:

    I wouldn’t worry about it, the family courts in the UK have already lost all credibility anyway.

  3. Friend says:

    I’ve seen mediation in action, and I can guarantee it doesn’t work. You would not be there if the two parties could communicate, and had a grain of empathy.
    Why is this being discussed?
    I thought it was now well know that mediation was just another money-grabbing stage introduced by the government in the ever-growing corporation called ‘divorce capitalism’.

  4. Friend says:

    “This is a recipe for tension.”
    Yes, of a very positive kind, I would imagine. The kind of tension that exists before revolutions. Only, maybe if the law society retreated on its militant opposition to shared parenting, a lot of blood might be spared.

  5. Paul Gilson says:

    It doesn’t help when the legal profession in general looks down on self-represented litigants. One Bar Association-member-with-a-blog condescendingly regards LIP’s as akin to bag ladies who shuffle into court clutching their plastic bags full of papers. In my view, judges should give short shrift only to criminals, perjurers and professionals who ought to know better, not to a poor litigant who doesn’t know his way. In those cases the court service ought to do more for litigants when an application is first received. Given prevailing professional attitudes, one questions whom the current system serves most, ‘us’ or ‘them’.

  6. JamesB says:

    Judge didn’t, wouldn’t, hear a word I said as a LIP.

  7. Steve says:

    You are wrong on two counts, as was the judge. A judge does have a duty to ensure a party knows what’s going on by virtue of the Human Rights Act. Also “and a duty to adjudicate an outcome which is fair to both sides as opposed to making a finding for one party against the other, “. This is a palpable nonsense. A judge does not have a duty to adjudicate a decision which is fair to both sides. In family law, where children are involved a judge has the duty to make the child’s welfare paramount. Courts are not about fairness, they are about adjudicating on factual disputes using legal boundaries NOT being fair to all those involved.

  8. Friend says:

    James, your complaint is very familiar. I’ve heard LIPs repeatedly complain that the courts routinely silence them.
    As an LIP dad, you’d be best to bring a member of the press in with you so as to pre-empt this kind of injustice.

  9. zana says:

    I was a LIP and found the court back office staff very helpful in advising me on the documents etc needed. The judge was downright rude and was over-friendly with the other party’s solicitor. So much so that solicitor commented on the fact as we walked out of the hearing. I thought – Get used to it judge there will be more like me coming before you.

  10. JamesB says:

    I remember one hearing the judge summoning the cafcass officer and barrister to his chambers and leaving me outside also, where the emergency holiday contact was descided. Probably illegal practice also. They are a law unto themselves. Avoid like the plague.

  11. Paul Gilson says:

    To a certain extent family courts are excused what they do in that the court is not there to dish justice out for the litigants but rather to decide on what is best for another party altogether. Some litigants are completely hard done by though, such as when a mother is permitted to scarper off abroad with the child leaving the father distraught with nowhere to go but Skype. That can hardly be considered an outcome fair to both sides.
    What a LiP merits is standing on an equal footing with the other party and the judge has a duty to make that happen. That’s hardly the perception though when he won’t even talk to you and the other professional in the courtroom views you as little better than a bag lady.

  12. JamesB says:

    Can’t see the press being interested, or allowed in.

  13. Stephanie Bamberger says:

    It’s interesting to me that this is a relatively new issue in the UK. There have been estimates that upwards of 85% of our family law litigants in California are unrepresented (“in pro per”). It’s definitely challenging and even more so in with the recent State budget cutbacks which have reduced the availability of resources for our pro per litigants (Family Law Facilitators’ Offices which are legally mandated for each county in California). I have multiple cases now where the opposing party is pro per. Those cases can be difficult, but it is what it is with the costs of legal representation and the slow turnaround in the economy.

  14. vob says:

    It is always preferential to have Legal representation and a travesty that legal aid has diminished, set this aside if you look at the figures of winning in”Care proceedings” with legal representation the odds are less than a 100 to one on. It doesn’t make sense and makes one question the ”Independence”
    It is a national scandal that children are being forcibly adopted, in general this is cruel system that continues on it’s way hidden from view,accountable to no one but itself.
    It is commendable that you have a blog open to all and notably one MP who see’s it for what it is.

    • Marilyn Stowe says:

      Vob
      Legal aid will continue to be available for care cases. It is private family law cases that do not involve violence that are going to be affected.
      Best wishes
      Marilyn

  15. vob says:

    Thank you for that explanation.
    I believe this would be difficult to get if you are employed and on a relatively low income.
    Many thanks.

    • Marilyn Stowe says:

      Vob
      If care proceedings are begun, the parents are automatically entitled to legal aid irrespective of means. that will remain the case. Only private cases are involved with the cuts.
      Regards
      Marilyn

  16. Bruno D'Itri says:

    Perhaps it’s time for a ‘National Family Justice Service’; something akin to the NHS.
    The outcomes of court hearings are concerned – it is maintained – primarily with the welfare of the most vulnerable in our society: children.
    It is quite immoral, in my view, that our society permits the interests of a vulnerable child to be (usually badly) represented in court by a litigant-in-person parent.
    We wouldn’t allow that parent to extract his child’s tooth, or appendix.
    All children deserve proper representation in court. Can anyone argue differently? If so, let them speak!
    Bruno D’Itri

    • Luke says:

      “It is not uncommon for self represented litigants to invite the court to act as a source of guidance. The court is under an obligation to do justice…But the English legal system is adversarial.”
      ===================================================================
      THIS is what needs to change – we need to get rid of the adversarial system – it’s fine if everybody is a millionaire, but otherwise it’s hopeless and costs an absolute fortune.
      I can understand why lawyers don’t want this and I appreciate that on a personal level – but we simply cannot afford our system as it currently stands and it has to go.

  17. Marty Shaw says:

    In Texas 90% of all divorces are filed pro se and the courts have had to get used to this as people simply cannot afford lawyers and legal aid is very limited. The Supreme Court recently announced a unified procedure for uncontested divorces so that all Counties would accept the same forms. At the end of the day the law is for the people not the other way round and Governments all over the world are going to have to design systems to allow cases to be simplified so that people can get justice without lawyers.

  18. vob says:

    I agree with the comment ” Something akin to the NHS”
    Would we be happy medical procedures with high failure rates ?
    Extended families fighting for the care of relatives that
    can ill afford Legal representation having to resort to acting as a ‘Litigant in Person’ against their better judgement sometimes ‘needs must’ who wouldn’t want the expertise of family lawyers. Especially when you have a government promoting ”forced adoptions” where the failure rate is 20-25% rising more with age. A vote winner because it is cheap financially , morally far cheaper.
    A divorce rate above 50% put these numbers in context with each other then acting as a Litigant in person one has little hope of succeeding, but at least we tried.

  19. Elizabeth Moles says:

    Recently been an LIT. Excoriating experience with the judge biased against you, wouldn’t let you read your opening statement, took over the cross examination knowing little detail of case and then openly accepted and ruled admissible both speculation and hearsay from DFT. awarded punitive damages against LIT even though other side protracted and escalated proceedings. Hears some judges prefer awarding justice to protecting out-priced legal profession but this dame was not one.

  20. CB says:

    Worse things can happen even if you have had the best judges in the world sitting in judgement and the best legal representation in the world bringing an end to a Full Care Order being made in the name of a child that has never existed, End of case, nothing to answer to, obviously, in the name of child that did not exist, obviously no case for family to answer to. Wrong in our case, a split case that was joined in the High Court of Appeal, with the false name of Child on certificate was split by Local Authority, and the false name on the Full Care Order was changed illegally to read the childs birth certified name, the Local Authority then went on to have the child adopted with this, illegal tampered with documentation, as a family we were completley powerless to stop them,
    Now the case is back in the Civil Court for suing them, possibly another pointless process, but it has given the facts I state above, an airing in court. Also brought to the local police, to investigate as criminal, to no avail being a fact the same police investigated at the begining in childs birth certified name ending in released unconditionally, then joined in the Family Law case knowing the name of the child had changed, from their criminal investigation, entered later doctors reports from their Criminal investigation to support possiblity/probability case.

  21. john brick says:

    I’ve learned a lot in 10 years of defending against improper actions. The biggest lesson is that corruption exists in both the legal and judicial systems in this country, and not just a little I think. If you want to win in court, whether you are right or wrong, the best advise I can give – sell your soul and join the Free masons. Judges are, solicitors and barristers are. You think as a non-mason LIP you are going to get justice in the UK courts?

    • Andrew says:

      John, any recommendation for female LIPs?
      Do you worry if your judge Catholic?

    • JamesB says:

      I used to. Then I actually went there and the answer is no.
      The idea or fair law and treatment of people is a nice thought though, it is a shame it is so difficult to achieve in practice. Should we give up? Well, probably not, a half corrupt law is better than no law I suppose but they do push it and could be a lot better.

    • JamesB says:

      The senior Circuit Court Judge said to me when I tried to get more contact with my children (as a LIP as I couldn’t afford the lawyers fees), which is a reasonable request two things which stuck in my mind.
      1. I don’t come to work and tell you how to do your job, you shouldn’t come to my place of work and tell me how to do my job.
      2. Ex Mrs JamesB shouldn’t have to deal with these matters she needs the time better spent on bringing up the children and family life
      That was the last time I went to court, was years ago. I decided I wasn’t getting anywhere and they couldn’t or wouldn’t help me as the law seemed for sale on this matter. To be fair to them all there was by way of evidence was absolutely nothing except a cafcass report saying there was no evidence of abuse of bad parenting on either side. Didn’t stop the judges reducing contact and then not enforcing it also. Sadly on these difficult to resolve proceedings it seems you need a lot of money to even be heard and even then the court was biased in favour of the resident parents. Things may have changed, but I doubt that. I could have spent another 10k plus and got a day every other weekend and then spent six months enforcing it, but I changed tact and went for what she could give and got slightly more than that years on. The moral of this story, steer clear of these (England and Wales family law courts) places. Yes I miss my children, very much so. Yes they miss me. Shame on these places and feminism.
      Reminds me, another thing the circuit court Judge said, you are talking about what it means to you too much, not the children, well, the two things are the same, so really he meant I was talking as a LIP not a lawyer and wasn’t listening due to that.

  22. JamesB says:

    In answer to your question, the whole system needs to change. It is too expensive.
    Let me give two examples. one. Me paying the last £5k I had to my solicitor to get me through final hearing, the solicitor blowing it on pointless negotiation as the solicitor for my ex sounded like he wanted to do a deal. Deal falling through and me having to go to court unrepresented because lawyers like to come to agreements between them and thrash them out with clients, which will work most of the time but when one side has more money or is unreasonable than the other it doesn’t work. It doesn’t work quite frequently.
    Two. Me, knowing that my ex father in law (alcoholic) will react and fire off back from the hip to a conciliatory letter from me, instructs and demands that my solicitor (when I had one) does not e-mail the letter we drafted together but only send hard copy to ex wife’s solicitor so that ex can read it and think and get an opinion in before her father and solicitor mail me straight back saying no. As he lived abroad and only could get e-mail. Her solicitor then phoned mine as soon as he received it and said e-mail me the letter to which my solicitor did and then e-mailed the ex fil and got a mail back with abuse from them before ex had chance to read it. So much for them being instructed by you. They are a law un to them selves I do not weep for them losing payment from taxpayers.

  23. JamesB says:

    They are a law un to them selves I do not weep for them losing payment from taxpayers at all.

  24. JamesB says:

    Senior Circuit Court Judge said to me, I don’t come to your place of work and tell you how to do your job, you shouldn’t come to mine and tell me how to do mine.
    I remember that from the last time I went to court, I couldn’t afford lawyer and that is what I got for trying to see more of my children. I didn’t go again after that and losing costs for the day. So much for them being fair places. You have to pay 10k to even get them to listen to you.

  25. Ciaran Patrick says:

    As a lawyerless litigant I don’t expect the court to offer help or support, what I expect is fairness. If you go to court and there is a solicitor on the other side and yourself a lawyerless litigant then the courts can’t be seen to be a place where there is bias. I mean that those with deep pockets and malicious intent steamroller the oposition.
    By definitioon an adversarial system indicates two equally matched opponents it does not define a lion attaching a mouse that is ties to a stake. That is the situation at the moment with solicitors and lawyerless litigant. By no description that I have managed to come up with can it be termed an adversariel contest.
    If the system is to be seen to be fair and equitable to both parties then the only way round this is for the judge to take into account the limits of obe side otherwise as I have said only those with deep pockets will prevail and those seeking justice who are on the bread line will always unless lucky loose.
    If judges take sides because one side has a solictor then justice will not be served EVER. The idea os adversarial is actually a red herring. Courts Civil or otherwise are there to sort out the facts and if one side has an ocean width of advantage then justice will never be served.

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