We now live in an age where fewer people are able to obtain representation in family proceedings. More and more people are having to fend for themselves as they navigate their way through the minefield of the family justice system. Unfortunately, some of these litigants in person are finding things to be rather harder than they should.
Take, for example, the husband in the recent Court of Appeal decision D v D. Whilst he was represented in the Court of Appeal, he was not represented in the earlier proceedings, which concerned a financial remedies application following divorce.
The case originally went before a Deputy District Judge, who ordered that all of the available assets, including the former matrimonial home, should be transferred to the wife. The husband sought to appeal against the order and the wife made a cross-application to strike out the appeal.
The matter then went before Her Honour Judge Hughes QC in the Principal Registry. She struck out the husband’s appeal, on the basis that he had failed to give reasons for the appeal. The husband then appealed against that decision, to the Court of Appeal.
The Court of Appeal allowed the husband’s appeal, Lord Justice Ryder giving the leading judgment. Whilst pointing out that a litigant in person must comply with the rules, and the husband had failed to set out the grounds of the appeal in his notice of appeal as he should have done, he found that there were circumstances that exonerated the husband in this case.
When filing his notice of appeal the husband had said that he needed to see a transcript of the original judgment (which the Deputy District Judge had directed should be made available) in order to set out his grounds of appeal. Accordingly, he applied for an extension of time to file grounds of appeal on receipt of the order and judgment of the court. For some reason, that application was never listed or determined by the court.
Meanwhile, the husband made various efforts to obtain a transcript of the judgment. On seven occasions he either telephoned the court or went to the court office to request the transcript. He also requested permission to inspect the court file on at least five occasions, because he believed that at least a draft of the judgment existed on that file. The court never gave permission.
The transcript was not made available to the parties or even to HHJ Hughes, despite being available to the court. HHJ Hughes’s attention was not drawn to the husband’s efforts to obtain the transcript, and hence she came to the conclusion that the husband had failed to plead his grounds of appeal, despite having ample opportunity to obtain the transcript. In the circumstances she misconstrued the prima facie facts and accordingly should not have struck out the appeal.
The husband in this case may not have been entirely blameless for what happened to him (it is said that he failed to provide adequate disclosure of his financial position in the original proceedings), and it is also not clear whether he was unable to afford representation in the earlier proceedings. However, what is clear is that without representation he was poorly served by the system. One cannot imagine that if he had been represented his lawyers would have had the same experience. If it is to meet the challenges that lie ahead in a world where many, if not most, litigants are self-represented, then the system must do better for them in future.
The full report of D v D can be found here.