As I know I’ve said here previously, I have every sympathy with litigants in person, in particular those who find themselves in that position through no fault of their own, other than that they cannot afford to instruct a lawyer. Sadly, of course, there are now far more such people grappling with family court proceedings on their own since the government saw fit to abolish legal aid for most private law family matters.
Representing yourself as a litigant in person in family proceedings cannot be easy – sometimes even the professionals find it difficult. It is not just a matter of not knowing the law, it is also a matter of not knowing, or perhaps not understanding, the procedure. A particular issue is how to communicate with the court and the judge dealing with your case. Many litigants in person fail to understand that communicating with a court is simply not the same as communicating with other individuals or organisations. The court cannot engage in free communication with parties, and doesn’t have the resources to do so even if it could.
The problem is exacerbated by the strength of feelings engendered by court proceedings, especially family court proceedings, with parties often having a constant stream of points they wish to raise with the court, whether these are actually relevant or not. It is also, of course, exacerbated by the litigant who bombards the court with communications in a deliberate policy aimed at causing trouble for the other party – for example, in the hope that the other party will tire of the litigation.
The problem is also made much worse by the ease with which modern technology allows the litigant to communicate with the court. I am talking, of course, of the curse of email, a subject that I have raised here previously. As I said before: email means that you no longer have to write, type or print a physical letter. You no longer have to pay for a stamp, or take it to a letterbox to post it. And above all, it’s instant, meaning that it can be sent ‘in the heat of the moment’, without any chance to reflect upon whether or not sending it is actually the right thing to do.
And at the other end of the communication is the court’s inbox. As I said above, courts don’t have the resources to deal with torrential emails from litigants in person, even if they wanted to. This is a real problem for over-worked and under-staffed courts. As I have explained here previously, one way that the court can ‘fight back’ is with the use of the civil restraint order, retraining a party from making any further applications to the court without first obtaining the permission of the court to make the application. But that only deals with actual applications. Many of the email missives that the courts receive from litigants in person cannot be defined as applications – they are more of the nature of general communications (even if sometimes they really should be in the form of applications). How is the court to protect itself from these?
That problem has now received the attention of one of the country’s most senior judges. In the recent Court of Appeal case Agarwala v Agarwala Lady Justice King referred to the “slew” of emails from both parties to the judge and to the court.
Agarwala v Agarwala was not a family law case (it involved a property dispute between two family members) and so I’m not going to go into the details of the case. For the purposes of this post all we need to know is that, for the most part at least, neither of the parties in the case was represented.
As in previous cases, both parties were guilty of bombarding the court with ‘endless applications’, as a result of which the court imposed civil restraint orders upon both of them. But that didn’t stop the parties from inundating the court staff and the judge with emails. All of this moved Lady Justice King to make a plea in a postscript to her judgment:
“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.”
This is obviously a draconian measure to take, but what else is the court to do? I would not be at all surprised if the courts are given such powers, or find a way of achieving the same result with their existing powers, in the near future. Quite how the court will define what communications are allowed and what are not, I don’t know. There is also the problem that some communications may contain matters that are allowed, alongside matters that are not, but I’m sure judges will be able to resolve such issues.
Of course, none of this will stop the obsessive litigant sending torrents of emails to the lawyers acting for the other party in their case, but that is another matter…
The full report of Agarwala v Agarwala, if you wish to read it, can be found here.