The difficulties caused by litigants in person

Family Law|June 7th 2016

Before I begin this post I must emphasise that it is not meant as a criticism of litigants in person. Litigants in person can face an extremely difficult task, often simply because they cannot afford legal representation. It is no surprise that they don’t always understand how court proceedings should be conducted. I also acknowledge that the things that occurred in the case I am about to mention have also occurred in cases where the parties are represented, but they are surely more likely to occur where there is no representation.

If this post is meant as a criticism of anyone, it is of the government which, by abolishing legal aid, has condemned many thousands of people to having to represent themselves, whether they like it or not.

However, it is not just the litigant in person who faces difficulty through the lack of legal representation. The court also can be faced with a much harder task, both having to explain things to litigants in person that lawyers would know, and having to deal with the behaviour of people who do not know how best to pursue their case.

The case I wish to mention is the Court of Appeal decision in Tattersall v Tattersall. It concerned a husband’s application for permission to appeal in respect of three orders made in relation to the enforcement of a financial remedy order made in December 2012. Neither the husband nor the wife were represented before the Court of Appeal.

I’m not sure that the case raises any points of great legal interest, so I’m not going to go through it in detail. Instead, I’m going to highlight some points from it that typify the sort of problems our courts face having to deal with litigants in person. This is, in fact, an exercise similar to one that I have carried out here before, in relation to the case H v H. However, there I was looking at it from the point of view of the litigant in person, whereas here I am looking at it from the point of view of the court.

There are five points raised by the case:

  1. Misunderstanding of the law and procedure

Here, the husband appears to have misunderstood the function of a stay of execution and made various allegations that the judges dealing with the case had failed properly to comply with the family proceedings rules. Now, this is an obvious ‘criticism’ of litigants in person, but it must be extremely tedious and time-consuming for judges to have to not just explain everything in detail to a litigant in person but also ensure that their explanations are understood. Obviously, these are tasks that a good lawyer would carry out if the litigant was represented.

  1. Bias

When courts make decisions against litigants in person it is very easy for the litigant to form the erroneous view that the judge is biased against them. Here, the husband alleged that at least two of the judges who dealt with the case were biased against him, and made a number of applications for judges to recuse themselves. None of the applications were successful, but nevertheless they all had to be dealt with by the court, adding an unnecessary burden to the workload of the judges and, perhaps, adding to the stress of dealing with the cases.

  1. Failure to provide the court with appropriate documentation.

This is a common one. Litigants in person don’t always know what documents are relevant or are required by the court. As a result, they may adopt a ‘scattergun’ approach, filing huge numbers of documents, many of which will not be relevant. Ironically, this may still mean that relevant or required documents are missing, as was the case here. The difficulties that this can cause judges attempting to deal with cases are obvious.

  1. Inappropriate communication with the court (a problem compounded by the ease with which communications can now be sent, i.e. email).

Here, it seems that both parties were guilty of bombarding the court with emails. In her judgment Lady Justice King mentioned that much of the difficulty in the case was caused by both parties routinely writing to the court by email seeking orders, asking for clarification and protesting about the behaviour of the other party. Courts are simply not equipped to deal with such communications and, certainly, judges do not have the time to deal with them.

  1. Refusal to accept the decisions of the court.

I mentioned this one in my previous post, referred to above. Lady Justice King sums the problem up nicely:

“These proposed appeals are but the tip of the litigation iceberg. I understand that there have been six appeals to this court in respect of the child of the marriage under the Children Act 1989. One of the inevitable consequences of cases such as these where, as here, one party simply refuses to accept the decision of the court is that there is a flurry of applications, cross applications and appeals inevitably leading to procedural difficulties considerably exacerbated by the fact that both parties are Litigants in Person.”

And yes, for the pedants out there I know that the husband was partially successful in his application, but one success does not justify multiple appeals.

Now, I realise that few people are sympathetic towards courts and judges. However, the substantial rise in the number of litigants in person following the abolition of legal aid for most family law matters is causing real problems. Courts, already underfunded and over-worked, are grinding to a halt under the increased workload. Inevitably, cases are likely to take longer to be dealt with. Due to the increased burden placed upon them potential judges are likely to be put off from entering the judiciary (I have already come across anecdotal evidence to this effect). And then there is the effect upon the court staff, who find themselves at the front line. They are just ordinary people trying to do a job, now much harder than it once was.

I would suggest that a thought should be spared, not just by the public but also by the government, for the difficulties our courts are caused by litigants in person.

The full report of Tattersall v Tattersall can be found here.

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  1. spinner says:

    John, ask yourself this question “Is legal aid for everyone ever going to be reinstated ?”
    If you believe that it will be then keep writing articles on how great it was in the good old days of legal aid funded family law when everything was perfect and how it’s now all terrible.
    If you don’t truly believe that it will be reinstated as that is what reality would suggest why not start looking for and suggesting solutions that would improve the situation without legal aid being reinstated. There are many possible solutions and it would be great to have someone with a good knowledge of the system actually take a progressive attitude towards the situation and be part of the solution.

  2. Vincent McGovern says:

    For the first time I find myself in agreement with John Bolch. One obvious matter outstanding, as the
    Legal Aid gravy train has caused so much of the cutbacks in family courts (apart from many mothers who surprise surprise avail of Legal Aid via usually false DV allegations) is what solution John advises? As a shared parenting worker and part time McKenzie the evidence of cutbacks among court admin staff is all too obvious. And this causes further despair to the Litigant in person, usually male who believes this is all a pre planned conspiracy. And then the likes of me has to make him believe it is circumstance and if he perseveres he will get a hearing. I never ever use the word fair re family courts, that would be a porkie of the highest order.

    • spinner says:

      I know people like to think of the family court as being fair and non biased but the point you raise about false DV allegations being using to secure legal aid leads to a situation where for a man he is already slandered but then the female who is being funded by legal aid just sits there until the man runs out of money to fight his case, or then chooses to go litigant in person.
      It’s a shambles at the moment and brings the law into disrepute and it needs a root and branch rethink on how the family court is run and funded.

  3. JamesB says:

    I would suggest a thought should be spared for the litigants in person who not only have to face a hostile ex with her or his representation but the court and judges who do not look favourably at LIPs at all and have similar prejudiced nature as John, add to that that the other side will be ‘accidentally’ not supplying documents that they have to the court to the other side and are absolved of blame as it is easy to blame the legal inexperience of the LIP, it is as Spinner says above a shambles of a system.

  4. JamesB says:

    Not just that, plenty of other game playing then looking innocent in the courtroom. Could give many such examples, of lawyers and Judges taking the piss out of LIPs as John does again here, and have had it done to me on countless occasions. It may be a fool lawyer who has himself as a client, or whatever it is, it is still more of a fool to pay these overpaid inept patronising people to talk down to you.

  5. JamesB says:

    Silly game playing victim then playing innocent or vice versa. Reminds me of the play acting in the Champions league final, frustrated actors and footballers and lawyers, put them in room 101.

  6. JamesB says:

    Frustrating actors and footballers and lawyers, put them in room 101.

  7. JamesB says:

    I agree with one thing John said above. LIPs frequently don’t understand their obligations to the court (perhaps after seeing the other side miss and not make deadlines and unenforceable contact orders). I have seen a LIP attend court to combat made up allegations against him to be told they have to be proved true as he hadn’t submitted a rebuttal to the affidavit to the court, even though was all provable nonsense and lies. What sorcery is that? Nonsense is what that and such approach is. That the courts will not amend their proceedures in the circumstances to allow LIP to prove allegations to be incorrect in court says who is the worse between court and LIP here, they could start by caring and being more accommodating rather than just hammering the LIP.

    Reminds me of the Hitch-hikers guide to the Galaxy (plot spoiler), earth gets demolished as there is no objection filed by the people of earth at the appropriate office. Kind of reminds me of the nonsense John is spouting here.

  8. JamesB says:

    Another example I have seen. Solicitor writes in unilaterally asking for an adjournment, gets an adjournment, goes on holiday. LIP writes in unilaterally asking for an adjournment, refused adjournment, has to go away for work, hearing happens, gets costs awarded against him. Solicitors and barristers waste courts time without sanction, LIP wastes court time or fails at some obstacle and will get costs for day if not more awarded against. They don’t want LIPs, LIPS can’t afford representation to argue and contentious litigation, something has to give currently it is marriage and father’s relationships with their children very badly working system.

  9. JamesB says:

    Solicitors and barristers just get stuff when they ask, like final hearings, adjournments, variations, enforcement orders, costs, LIPs have to pay the hundreds of pounds fees. Is dodgy smelly club who only listen to each other speaking BS language with BS rules none of which make sense or are aligned with natural law. Sooner they reform or close these places the better.

  10. Andrew says:

    At the risk of sounding like a needle stuck in the groove: if one party is given legal aid and the other not Article 6 is breached. And sooner or later it will be so declared.

    In the meantime the unassisted and unrepresented litigant must be allowed to cross-examine in person – and given some leeway – and if that is hard on the assisted party it is JTB.

  11. JamesB says:

    Couple more things while I remember. In front of Judge, QC / Barrister gets to go first and is allowed to stand and go on for a while. Then when LIP tries to stand is told to sit down and be very brief, then to shut up.

    Barrister for one side goes into room with cafcass officer and Judge to sort the case over tea and biscuits while the LIP is left outside, outcome is unsurprisingly in represented sides favour. Represented side doesn’t lose costs on children act matters, unrepresented LIPs do. Represented side highly unlikely to lose costs on all divorce matters, LIPs like to lose at least some, if not all, usually the odd days hearings costs. Represented side gets to put the bundle together.

    Still after all that and losing the odd costs, the costs of being represented in contentious proceedings against a hostile ex are very big and many will prefer the humiliation of being called names by the legal profession and ‘losing’ as will be less costly then ‘winning’ with a lawyer, especially on the children contact order side of things. Lawyers need to look at their disproportionate costs, Judges say so frequently, however it is lip service as getting lawyers paid is always the priorities of these courts.

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