I wrote here on Tuesday about the plight of the litigant in person, who has to negotiate the family justice system without the help of proper legal advice and representation. It didn’t take me long to come across a case that clearly demonstrates the difficulties and pitfalls that a litigant in person can face.
The case is actually a Northern Ireland Court of Appeal decision, but the law there is very similar to that in England and Wales, and the principles are the same. The case is H v H, an appeal by an unrepresented husband in ancillary relief proceedings (I do like the fact that they still use the term ‘ancillary relief’ over there, rather than the modern ‘financial remedies’ which we use, despite it not according with the wording of the statute that sets out the law).
The case had a history of long and costly proceedings following the breakdown of the parties’ marriage, with the husband being ordered to pay much of the wife’s costs of those proceedings. The ancillary relief proceedings culminated in an order transferring the former matrimonial home to the wife and ordering that a property the parties owned in Ipswich be sold, with the net proceeds of sale being used first to pay the wife’s costs, with the balance, if any, going to the husband. The husband was also ordered to pay the wife’s costs of the ancillary relief proceedings, essentially because of the unreasonable manner in which the husband had conducted the litigation.
The husband appealed against this order. His appeal was dismissed by the High Court and he appealed again, to the Court of Appeal. He also appealed to the Court of Appeal in respect of a separate decision that had gone against him in relation to the length of a hearing – see paragraph 3 below.
Now, I’m not going to go through judgment of the Court of Appeal in detail, rather just pick out certain points which highlight the typical kind of errors committed by litigants who are not legally assisted (and which all family lawyers have witnessed). Here, those included:
- Preparing over-long documents, attempting to cover everything, without knowing what is truly relevant. Here, for example, the husband’s “Notice of Appeal” just in respect of the separate decision ran to 45 pages, most of which Gillen LJ in the Court of Appeal described as “totally irrelevant to the matter in hand”. Now, obviously preparing over-long documents that are full of irrelevancies will not go down well with the judge. Worse than that, such a document may make it difficult or even impossible for the court to decipher exactly what your case is, as was the situation here in respect of the husband’s main appeal.
- Raising conduct as an issue in ancillary relief proceedings. I saw this many times when I was practising. The litigant in person knows that the conduct of the other party can be a relevant factor for the court to take into account when considering what financial/property order to make, but simply doesn’t understand that it is only relevant in very exceptional cases, where the conduct is “both obvious and gross”. As the saying goes, a little knowledge can be a dangerous thing.
- Alleging bias or other procedural irregularities on the part of the judge. This can be a common tactic by a litigant in person, especially when things go against them. Here, the husband alleged that the judge had wrongly altered the record to say that a hearing took much longer than it actually did, or in the alternative, that he had not been present during the entirety of the hearing and that the court had therefore conducted a “secret hearing” in his absence. The allegation was investigated by the court, which found that the hearing had indeed been as long as the judge had recorded, and that the husband had never had any basis for asserting that the original record of the length of the hearing was accurate.
- Alleging fraud and misconduct by lawyers for the other party. Litigants in person can often feel that there is some sort of conspiracy against them, and that the other party’s lawyers are somehow involved in that conspiracy. Needless to say, it is very rare indeed for a lawyer to be guilty of such behaviour, and if they are the matter can be raised with their professional regulators.
- Improper behaviour in court. One of the duties of a lawyer representing a client in court is to restrain them from improper behaviour, such as insulting the other party, their lawyers, or even the judge. Obviously, feelings can run high during court proceedings, and things can be said that may seriously harm a litigant’s case. It is difficult for litigants in person to keep their emotions in check without the support of a lawyer.
- Not knowing when they have genuine grounds for an appeal. This is another common one. Many lay people seem to believe that everyone has an automatic right to appeal against any decision, irrespective of the merits. Consequently, many ill-judged appeals are launched by litigants in person. As we will see in a moment, this can have serious costs consequences for them.
- Lastly, and along similar lines: quite simply, not knowing when to stop. Litigants in person in family proceedings often seem to get locked into a spiral of perpetual litigation, somehow believing that as they are so aggrieved at the way the system has treated them then if they go back to the court enough times they will eventually get what they consider to be the correct result. Obviously, it is the duty of a lawyer to tell their client when there is no benefit in further litigation (in fact, often quite the opposite).
It may come as no surprise that the Court of Appeal found no reason to disturb the decisions of the courts below, and therefore dismissed the husband’s appeals. Further, at a separate hearing the Court of Appeal considered the issue of the costs of the appeals. Gillen LJ concluded damningly:
“We are satisfied that the conduct of the appellant in continuing to relentlessly pursue the respondent in what amounts to almost an obsessive fashion on what we considered to be unmeritorious grounds and the manner in which he has conducted this appeal with serious unfounded allegations against counsel, solicitors and members of the judiciary, are such as to take this case out of the norm and constituted misconduct of an unreasonably high degree. This conduct has not been merely wrong or misguided but has been so wide-ranging and insulting as to be deserving of moral condemnation.”
Accordingly, the husband was ordered to pay the wife’s costs of the appeals, also to be taken from his share of the proceeds of sale of the Ipswich property.
As we have seen, there are good reasons why the conduct of the husband in this case should be criticised, but this post is not intended to criticise him, rather just point out the difficulties and pitfalls faced by litigants who have to negotiate the family justice system without the guidance of a lawyer. I don’t know whether the husband here couldn’t afford representation or simply chose to proceed without a lawyer. However, there are now very many litigants who would like to have representation but can’t afford it, and who would have been eligible for legal aid prior to the cuts in 2013. This case illustrates just the sort of problems they can face.