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Crowther v Crowther: How far should a judge go in assisting a litigant in person?

Sweeping cuts to family legal aid funding were ushered in with the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act of 2012. As a direct result, an increasing number of individuals are required (many by necessity) to appear before the courts in person, without the benefit of proper legal advice and representation.

It is, unfortunately, common for one party to be represented by a solicitor or barrister, with the other party representing themselves. A question often asked by the represented party is: how far will the judge go in helping the unrepresented party? The answer, of course, is that it will vary from case to case, depending on the issues involved.

However, the recent Court of Appeal judgment in Crowther v Crowther [2017] EWCA Civ 2698 serves as a useful reminder of the limits of how far a judge should go in assisting a litigant in person in financial remedy proceedings.

The case was initially heard by His Honour Judge Tolson QC in the Oxford Family Court, in a long-running matrimonial proceeding concerning a single issue: the former matrimonial home. The property had been purchased by Mrs Crowther during the marriage from an inheritance she received following the death of her parents. Mrs Crowther’s position was that Mr Crowther should have no interest in the property; it being an asset acquired entirely from her inheritance. Mr Crowther’s position was that it should be sold, and the net proceeds should be divided equally, to enable both parties to re-house.

At the final hearing before Judge Tolson, Mr Crowther was represented by an experienced barrister, whereas Mrs Crowther appeared in person (earlier attempts to secure legal aid funding for Mrs Crowther had been unsuccessful). The Judge obviously recognised the need to try and achieve a fair process, despite one party being represented and the other not.

As part of this process, the Judge asked Mr Crowther a significant number of questions, relating to his ability to live independently.  Unfortunately, both parties suffered from mental health problems and were vulnerable, with Mr Crowther also suffering from a physical disability, rendering him wheelchair-bound. Mr Crowther’s case was that if the former matrimonial home was sold and the proceeds divided equally, he would use that money to purchase a one-bedroom property in a nearby town and would live on his own with little to no support.

In giving his judgment at the final hearing, Judge Tolson expressed doubts as to whether Mr Crowther would, in fact, use the sale proceeds to purchase a property for himself and live independently. The Judge also raised concerns as to whether this would meet Mr Crowther’s needs in any event, and the Judge commented that “no share of the property less than 50% would serve any useful function as far as [Mr Crowther] is concerned and, of course, to grant him a sale and the full 50% would not in any way reflect the contribution which [Mrs Crowther] made from her family to the purchase of the property in the first place”. That effectively determined the case and so the judge refused to order a sale or award any of the capital to Mr Crowther.

Perhaps unsurprisingly, Mr Crowther appealed the decision. The appeal was considered substantively by Lord Justice McFarlane (the current President of the Family Division) along with two other appeal judges, Lady Justice Macur and Lord Justice Henderson. The basis of Mr Crowther’s appeal was twofold. Firstly, that the Judge Tolson’s approach to Mrs Crowther’s financial contribution to the former matrimonial home was wrong and, secondly, that the Judge’s questioning of Mr Crowther had introduced the issue of Mr Crowther’s ability to live independently into the case (which was not a point or issue Mrs Crowther had pursued previously) and that it was unfair and improper for the judge to have done so.

Mr Crowther’s barrister highlighted to the Court of Appeal that the earlier judge was required to assist Mrs Crowther by asking questions, as a Judge is permitted to do by Section 31G(6) of the Matrimonial and Family Proceedings Act 1984. However, Mr Crowther’s position was that the judge simply went too far in “taking over the cross-examination and presenting a case about the husband’s ability to live independently, which was simply not part of the wife’s case before the court.”

The Court of Appeal ultimately agreed with Mr Crowther’s barrister and allowed the appeal, directing that it should be sent back to the Family Court for a rehearing. In his judgment, Lord Justice McFarlane was clear not to criticise the Judge Tolson, stating:

“I wish to express my professional sympathy for the judge and indeed any judge in this not uncommon situation where one party is represented by a strong legal team and the other is a litigant in person. The requirement for the court to achieve a fair process by assisting the litigant in person almost inevitably draws the judge into the role of inquisitor, albeit on behalf of the litigant. It is a difficult line to tread…and I wish to be in no way critical of Judge Tolson, who on the day will, I am sure, simply have been doing his best to achieve a fair process for these parties”.

Several points arise from this interesting and difficult case.

Firstly, and perhaps as something of a ‘side’ issue, it reiterates the principle that in cases with modest matrimonial assets, the needs of the parties’ should trump any contributions arguments (that is to say that there should be less focus on which party contributed towards the asset and more focus on whether either or both parties have required that asset, or part of that asset, in order to meet their reasonable needs).

Secondly, the Crowther case serves as a reminder of the difficulties of litigating cases where one party is unrepresented. Whilst there were, fortunately, no concerns raised in this case in respect of Mr Crowther’s legal team, all parties involved in litigation must remain vigilant to avoid taking unfair advantage of a litigant in person.

Finally, the case highlights the enormous difficulty facing all levels of the judiciary when dealing with litigants in person. Notwithstanding the judge’s obligations to assist the litigant in person, as set out in the Matrimonial and Family Proceedings Act 1984, the judge must be very careful indeed not to take their questioning too far and, crucially, not to introduce, whether by accident or by design, arguments which the litigant in person had not originally pursued. The judge must, always, be mindful of both parties’ rights to a fair trial, as guaranteed by Article 6 of the European Convention on Human Rights (ECHR).

As Lord Justice McFarlane carefully pointed out in his judgment, there should be no criticism of the trial judge in this case, who was treading an extremely difficult line. Whilst there is some judicial guidance from the ‘Equal Treatment Bench Book’ and various other sources, the question of whether further resources or training is required bears consideration. We can, of course, only speculate as to whether further resources or training would prevent repeat occurrences of these types of issues, however, it seems unlikely that there will be any ‘quick fix’. This holds particularly true when considering the comments of Lord Justice Ward in the case of Re: R [2009] EWCA Civ 445:

“As more and more parties are forced to appear in person, so judges are frequently required delicately to maintain a level balance to the playing field. Give the litigant in person no help and he will complain: take too active a role and the other side complains. There is no easy way out of that dilemma.”

Given that Lord Justice Ward’s comments were made almost a decade ago, it appears likely that, unfortunately, these types of difficult cases will continue to cause real difficulties for the parties, solicitors, barristers and judges involved in these cases for some time to come.

In conclusion, all represented parties would do well to keep the points raised in the Crowther case high on the agenda when proceeding to a final hearing at which the other party is a litigant in person.

I regularly advise on high-net-worth divorce cases, often with international assets. I can appear as an advocate in the senior courts and have previously advised on a number of child contact and resident disputes.

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