The folly of the litigant in person

Family Law|August 20th 2015

Now, before I begin this post proper I should emphasise that nothing I am about to say is meant to be derogatory in any way towards litigants in person or McKenzie friends. Most litigants in person find themselves in that position entirely involuntarily, due to their inability to afford legal representation and the lack of legal aid. Despite the obvious disadvantage of not having a qualified lawyer to represent them, many do an excellent job of representing themselves. Likewise, many McKenzie friends provide a great service, as I’ve said here previously.

However, the fact of the matter is that litigants in person can have an entirely different outlook to a trained lawyer, which can lead them to take a course of action that no lawyer would ever contemplate. They believe that that course of action will help their case, when it is actually more likely to have entirely the opposite effect. I saw this myself on many occasions when I was practising, and I’m sure most family lawyers have witnessed it. The problem is particularly prevalent in proceedings concerning arrangements for children, where emotions run especially high.

And so it was in the recently published case H v Dent & Others, which concerned an unrepresented father’s application for contact with his daughter (the father did have the assistance of two McKenzie friends). I’m not going to go into the details of the case, but the basic facts were that the father thought that it would be a good idea to secretly record his visit to Cafcass’ offices and the discussions outside court between the Cafcass officer assigned to the case and the mother’s solicitor. Making surreptitious recordings or videos seems to be a common theme amongst litigants in person, as I can attest from cases that I have dealt with myself – I’m not sure whether this comes from watching too much television (no disrespect intended), or from the erroneous belief that recorded evidence trumps other types of evidence.

The father then used the contents of the recordings as evidence in support of applications to have the Cafcass officer, the mother’s solicitor and (originally, but not pursued), the Cafcass officer’s supervisor, committed to prison for contempt of court. The ‘charges’ against them were many (as one can imagine from a litigant in person), comprising a “wide-ranging, attack upon the entire course of their dealings with this case”. In particular, though, he alleged that they had breached orders made by the court.

Remarkably, the father’s applications were given a great deal of court time, including a three day hearing before a High Court judge, Mrs Justice Roberts. Less surprisingly, she found that there was no merit whatsoever in the applications, which were procedurally defective and which she considered to be an abuse of the court process. The applications were therefore struck out.

But that was not the end of the bad news for the father. In a second judgment Mrs Justice Roberts ordered him to pay the mother’s solicitor’s costs, which she had incurred personally, and which amounted to nearly £17,000 (the exact amount that the father has to pay is to be assessed by the court, if not agreed).

So, the father’s actions turned out to be pure folly, as I’m sure any lawyer would have advised him before he embarked upon them. I don’t blame him entirely – after all, as Mrs Justice Roberts said, he was only trying to restore his relationship with a much loved child. However, those actions have helped nobody, and have taken up a huge amount of precious court time.

Unfortunately, scenarios of this type are surely being repeated on a regular basis in courts up and down the country. For want of proper legal assistance, litigants are damaging their cases, causing themselves unnecessary delay, stress and expense. Children are being adversely affected by that delay and by the worsening of relations between their parents. Lawyers and others involved in the family justice system are being put to trouble and stress (having a committal application hanging over one’s head, even one clearly with no merit, must be no laughing matter). And finally, the courts system is being put to unnecessary expense and use of resources that are desperately needed by more deserving matters (such as the resolution of the actual contact dispute in this case).

The judgment regarding the committal application can be found here, and the judgment regarding the costs issue can be found here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Andrew says:

    Applications to commit the other side’s solicitors or counsel should not be issued or listed unless the applicant provides security for the alleged contemnor’s costs, open-ended and by insurance. No insurance, no application, no exceptions. The premium to be added to the costs of the application if it succeeds.
    If that is wrong, will someone please say why?

  2. Wistilia says:

    You forget to mention that there are scores of cases each year, where Lawyer clients end up with large Costs because of poor advice from Solicitors and Barristers, why?

    There are dreadful solicitors, barristers, Mckenzie Friends & LIPs.

    Please share the reality to readers.

  3. Nick Langford says:

    It is difficult to take John’s professed concern for LiPs seriously when he posts under the headline The Folly of the Litigant in Person.
    That aside, there is a serious point here, and there are far too many cases like this where poor advice from an McKenzie has resulted in costs and a damaged case. I would suggest there are two main reasons for this: one, sheer ignorance and unfamiliarity with the law, and particularly with correct procedure. Two, McKenzies who are still very angry following their own cases and are using someone else’s case to continue their fight against ‘injustice’ and the system.
    There needs to be an accepted code of practice and some form of standardisation so that LiPs can distinguish between good, reliable McKenzies and the cowboys. There has been some progress towards achieving this, but not nearly enough and many self-appointed MFs are resistant to any form of regulation. Perhaps someone like FNF needs to take the lead.

  4. StuG says:

    You seem to have approached this in the same way as the judge. You have mentioned the covert audio files but not whether they evidence the misconduct alleged. You focus on the peripherals….procedure, litigant in person vs professionals, superficial comments on recordings (but not why the father needed to in this case). And you have not commented on why Cafcass might have chosen to not pursue costs or whether, if they had done their jobs according to statute (rather than according to this judge), the child would never have lost her relationship to her father. Etc. As with the judgement, you leave out more than you put in, and provide shallow opinion on the little that you have considered. Perhaps it is this unskilled approach to reality that renders family law in the poor state it is. Your version of reality extends to whatever is written in the official story or interpretation of someone higher in the legal food chain. Thankfully, other members of the legal profession have done better.

    Thanks to your blog I expect this to go further so this father is given the fair trial in cyberspace that he was denied in court.

  5. Luke says:

    “You have mentioned the covert audio files but not whether they evidence the misconduct alleged. ”
    Yes, StuG, I thought exactly the same thing.
    Basically John seemed to be saying:
    “you silly LIP’s don’t understand that whether someone is in the right or not isn’t relevant – you have to understand our arcane and perverse rules to be on the right end of a judgement and we make sure that you don’t so you have to pay our huge wages”.
    What we need is a complete overhaul of the system – moving to an inquisitorial system that we can afford and away from an adversarial one that we can’t.

  6. Nick Langford says:

    You obviously have the advantage over John and the rest of us, Stu, in that you are more familiar with this case than we are, but the issues of the child arrangements application are not directly relevant to the committal applications. It is clear to anyone reading the judgements that the applications were completely without merit, were not made in accordance with due procedure (which you dismiss as “peripheral”), and were an abuse of process. As Mrs Justice Roberts says, “Given the clear objectives which lay at the heart of these applications, as those objectives were articulated to me by Mr Graham, I consider the applications constituted an abuse of the court process”. She explains what those objectives were in the costs judgement, “I remain concerned that his case may have been used by others as a platform for exploiting a long-running and deep-seated concern held by other disaffected parents who may have found themselves in a similar situation. I have already referred to Mr Graham’s remark in his closing submissions to me that ‘We are not going for Nicola Patterson’”. Those objectives have now left the father with a hefty costs order against him.
    As for giving the father “the fair trial in cyberspace that he was denied in court”, he was given an exceptionally fair trial in court, and a three day hearing to present an application that was entirely without merit. Other than the folly of seeking what Adrian accepts was very bad advice, the father comes out of the case pretty well, “At the end of the day, this was a father who wanted nothing more than to restore his relationship with a much loved child. He was, and is, a father who appears to have gone above and beyond what was required of him to maintain that relationship over many years following his separation from her mother both in terms of his commitment to contact and in terms of financial provision for his daughter”. Roberts wishes him well for the future, “The light shining at the end of this tunnel for H is that the issue of his future relationship with his daughter is now firmly in the hands of HHJ Bellamy QC. It would be difficult to think of a safer pair of hands than those of this very experienced family judge”.
    It is the McKenzie Friends, Stuart Graham and to a much lesser extent Adrian Yalland, who come out less well because of the clear objective to use the case to make a wider point about the inadequacies of CAFCASS. Rejecting the offer made by the third defendant’s legal team was extraordinarily foolish and very expensive.
    Interestingly, Roberts is clearly sympathetic to the father’s very legitimate grievance; she says, “In my judgment, the problem he faces is that the First and Second Defendants are not seeking an order for costs”. That’s a very odd thing to say – after all, the father already has a bill he cannot afford to pay – unless she is implying that had they made that application it would have been refused. We shall never know. It is also very interesting that Roberts allows so much space to Adrian’s critique of CAFCASS and quotes from it at length when it is not directly relevant to the costs issue; she clearly thinks that these criticisms demand to be heard.
    Inevitably this case will add to the growing list of cases which argue for better regulation of McKenzies and whether they should carry professional indemnity insurance – an issue I think John has raised before. There is also an issue here regarding to what extent McKenzies should be allowed to engage in reserved legal activities such as conduct of litigation. A tighter control exercised by judges such as Roderic Wood might have prevented this father’s case from being exploited in the way it was.

  7. StuG says:

    Your comments are based on an uncritical view of the judgement. And no more. The same opinions were not viewed by any of the members of the public who saw the permissions hearing. And remember, it was no more than a permissions hearing. It was not an open court evaluation of the evidence.

    More qualified people have seen the judgement, expressed their concerns and offered their assistance pro bono. Before and after the judgment. Communications with them have been shorter, employed more legal and critical thinking and been more informative. I’m going back there and will unsubscribe. I’ll leave you experts to speculate on the case with the minimal data you have. Thanks for letting me know your positions, it will save me time in the future.

  8. CB says:

    What should be more open to debate/discussion is statistics on how many accussed within Family Law cases actually win, then we have the answer to why public fianances Legal Aid has been removed.
    Every case and the legality of bringing the case, and accussattions should be on oath by the accusser at the start of every case

  9. russell armstrong says:

    Mr Block
    Your unwavering attacks on the legal aid cuts are, to be quite honest, a tiresome bore. You keep restating your case backed up by nothing other than a generalisation of how (only one or two mind) “LIP’s” either assisted or not assisted by Mackenzie friends have got it “wrong” and have, but for the legal aid cuts, made matter worse for themselves.
    How shallow your arguments run, you might as well title all (oh there we go again a generalisation) your blogs
    “why we should re-instate legal aid”
    From my experience of the solicitors I dealt with, they themselves are nothing more than a bottomless pit of money upon which to pour your money down. Their arguments were at best trite, they dodge the real issues like pros (ah of course that’s what a good lawyer can do, like politicians they can talk shoite and make it sound like they are actually making sense, but when you get to read the transcript shoite is all it is…….)
    So it’s down to good old common sense, and unfortunately many Judges also have their respective heads stuck up their arsnals.
    Its not down to legal aid cuts, its down to real people being guided to make more sensible decisions, read the parent with care should have their power removed before they can inflict enough damage to the child.
    From my experience there are normally not many good reasons why a child would start to move away from a previously trusted parent and many reasons why, when they do so, it is because they have been made (by the parent with care) an emotional target upon which to project their agenda.

  10. Wistilia says:

    Nick Langford has a point.

    Ridiculous way to proceed and very poor advice from the McKenzie Friends involved.

    However, there are plenty of Solicitors and Barristers who are just as bad.

  11. Adrian Yalland says:

    For the avoidance of doubt, I was not part of the original application, and never advised the application to be made. I was however asked to support the application after it had been made. It has always been my position the application itself was unwise, but I have no doubt the solicitor concerned had questions to answer over her conduct. This application was not the way to achieve that however, a point I made at the time.

    The second issue is that CAFCASS are (seemingly) beyond accountability and had seriously failed in this case – which was independently accepted in this case and the reason why they have not made an application for costs. Until such time as CAFCASS improve their performance, and the ability of parents to hold it to account is improved, there will always be the risk of parents embarking on litigation of this nature and I believe HHJ Roberts understood this, which is why she was so understanding of my submissions on the “wider” issues of CAFCASS’ failure.

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