Pitfalls for the litigant in person

Family Law|March 31st 2016

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

The full report of H v H can be read here, and the judgment relating to costs is here.

Author: Stowe Family Law

Comments(13)

  1. The Devil's Advocate says:

    If we had a fundamental Financial Transaction Tax, or Tobin/Robin Hood Tax, there would be not need to restrict Legal Aid support….there would be no need for LIP’s which is game playing to those other so called Advocate professionals…LIPs are equivalent to do it yourself dentistry.

    To be honest John this article is a waste of time if we had the notion of “justice to prevail” in our vacuous civilized society which exists in the United Kingdom. We could learn a lot from the judiciary in Finland, and even Mexico and Brazil.

  2. Paul Apreda says:

    Thanks for a useful article John. I’ve adapted some of your points into an article on our Facebook page as I can certainly see many of the elements you describe in some of the people who come to us for help.
    I disagree with your perspective however that everything would be so much better if everyone just used a lawyer. We often see lawyers for the ‘other side’ deliberately provoking LiPs and intimidating them with ‘legal procedures’ which have little basis in fact.
    We are hoping to launch a research project on the levels of satisfaction that Family Court service users feel which will hopefully identify some options for making the process less difficult for all parties.

  3. JamesB says:

    I remember just before going in to court, being very nervous, a very well presented and spoken man came up to me and informed me he was there to help as a barrister. I had a bit of a pleasant conversation about how would be good if things can be calmed down a bit and sorted out as best they could for the children as we all want that and to move forward in a positive way. Then the court speaker called us and he said “oh, Mr B. your wife has said to me that some post has arrived for you at the house” he then pulled it out in front of me. I went to take it and he put it back in his briefcase and sniggered at me and walked into the Judges chambers.

    The thing Paul mentioned just reminded me of that. The game playing and winding up. I remember said barrister for my ex (QC) deliberately taunting me and warming up against me as we were waiting for judge with cafcass officer he kept winding up to a point a had to walk away three times in 30 minutes.

    I have been told that as the professionals present they are there to help but that is nonsense. Another dodgy thing is they get to go in with the judge and cafcass officer and descide the case while you are left outside. Closed club well dodgy even when they have bad case buy buying a barrister they don’t lose costs against a LIP. Just thought I would point out some of the game playing and upfairness there is more but haven’t the time to go through it have done on here before anyway. Have had a judge listen to barrister and tell me to sit down and be quiet, not balanced that.

    All that said, I have found the family law courts of E and Wales best avoided unless you have lots of money they are also unable to enforce contact orders. They may be ok about adoption or other more black and white issues however the amount of poor well paid behaviour by the so called professionals, including cafcass has been extraordinary, including proving things as fact when it wasn’t without one party being at the hearing or notified of it due to being no longer able to afford a lawyer and the notification of the hearing going to the lawyers and me not knowing about it and me losing costs for day etc. in the end I had to walk away and offer no defence as it was pointless.

  4. JamesB says:

    With regards to John’s article, it is of course nonsense as most of his arguments are, think I may be siding with Graham Greene on University of Reading men.

    Looking for one very unrepresentative case and calling it illustrative is unfair. I have seen professional lawyers and solicitors put forward so many bad documents and cases in these places as to make his point ridiculously biased.

    With re to the perpetual court, I had a bit of that and I found it to be due to the inability of lawyers to want to settle but to rather draw it out for the money.

  5. JamesB says:

    I think John Le Carré says something similar from that university also.

  6. JamesB says:

    I meant, I think John Le Carré says something similarly bad about people who come from that university also.

  7. JamesB says:

    That’s where John graduated then solicitor in family law now writing provocative articles designed to wind people up as he has me to get them to post and perhaps I just fell for it again.

  8. JamesB says:

    I think I will try and steer clear of these wind up merchants like John and the aforementioned barrister and profession in future. Have seen solicitors documents with bad case, missing pages, wrong names wrongly identifying respondent and applicant, wrong dates, places, finances asking for 95% of respondents income (computer error I was told) in official documents, then of course there are all of the sworn documents which are lies and they know are lies, often, as with me sworn on bible in front of other side who know they are lies. There is a well known university entrance question, Is a Lawyer a good liar. The short answer is yes. I could certainly write a long answer on that one, I think I have done on here over the while I think I have made my point, best avoided.

  9. JamesB says:

    Lawyers and court best avoided that is.

  10. JamesB says:

    Also, I have seen solicitors and barristers put forward that:
    JamesB is domestic abuser, assaults people including ex and her father and his children.
    Is bad parent and neglectful and child abuser.
    Threatens ex and family.
    Doesn’t turn up at agreed contact times.
    Doesn’t feed or clothe children.
    Also asked for an order denying all contact.
    Also asked for an order of supervised contact.

    All the above with no evidence or grounds and no case and missing pages and evidence and not providing me with case before hearing. All of which disproved and thrown out and told off by the Judges concerned. So, your point about solicitors being better doesn’t hold. They got two things over 60 hearings.
    1. A temporary restriction on me taking the children abroad as ex wasn’t happy with it and she had passports, so had to prove was ok on top of the 100 contact visits and holidays til then had to do one more 2 week holiday continuous which I had not done until that date because she hadn’t let me have them for 2 weeks.
    2. A restriction of contact from agreed 3 weekends out of 4 and 1 midweek to bugger all (1 day every other weekend and 3 weeks in summer) because I asked for the contact to be enforced and she got order reduced because (as I didn’t know at the time) contact orders aren’t enforceable and Judges will go along with whatever Parent with care says to keep contact going. She since does what she wants on this and I cant do much. I haven’t seen them for a month but can do nothing. I do see them as much as I can and try and keep it as good as I can but the point that solicitors and courts are good and virtuous does perhaps need to be challenged as I found them not to be.

  11. JamesB says:

    Plus I went as McKenzie friend a couple of times and helped a couple of others out also, so five people including myself with being LIPs in ancillary relief and contact cases in E and W family courts so have some experience in the matter, did the full spectrum of cases and accusations including ex parte applications, findings of fact on violence (was accused of stalking when I wasn’t, another false accusation with no grounds) attachment of earnings, land registry charges, fdr hearing, final hearings etc.

    With re to courts not entertaining vexatious litigants I would add the caveat, if they don’t know their legal representatives.

  12. JamesB says:

    p.s. I didn’t enjoy it and despite others I know going down this route and becoming barristers and solicitors after their divorce and separations it is not something I enjoyed or wanted to pursue. I stopped about 8 years ago when they won because I wasn’t there because I was tired and fed up and I got the contact order mentioned above which they don’t stick to anyway. Also they say they don’t deny contact when I turn up and they are not there they say they were there. Also they say no contact coz kids are ill when they or not or even they don’t bother and say coz they want them or they say coz they don’t want to see me as they get older I think and hope they will see me more, I try and not say anything and haven’t but I do cop a lot of insults, I hope in the long run the kids keep seeing me as I have always been good to them. The family courts in England and Wales I have found to be silly.

  13. Nice Guy says:

    I am going thru a hard time as LIP in a very nasty final settlement it’s been adj twice and the judge is bias against me. I am about to lose the case even with all my evidence been ignored deliberately by judge and slot of foul play by Applicants solicitors.

    It’s mentally draining but I will appeal for a fair hearing. I am scared about paying my ex’s court costs as they are over £20k at present and she isn’t getting that in award even. I have simply defended her lies and wanted my right as all property was admitted as non marital but her barrister argued there is a NEED! I will fight on as I have a final hearing in April and it’s going in ex wife’s favour as evil judge is a woman supporter (

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