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:
- 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.
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.
- 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.
- 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.
- 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.