Saturday, 11 October 2014

Heed Mostyn's Warning To Litigants-in-Person

There's been much discussion on Sir Nicholas Mostyn's recent warning in the judgment Bakir v Downe [2014] EWHC 3318 (Fam) to litigants-in-person, that the onus is on them to understand court rules, and it's not the role of judiciary to give legal advice.

Some felt it an arrogant thing for Mostyn to do, and in the way he did it. "Why couldn't his clerk simply explain court procedure rather than the litigant-in-person being brought back to court, and the judgment made public to humiliate him?" In fairness, it seems Mostyn's clerk had repeatedly answered emails from the litigant, and Mostyn decided enough was enough when the litigant became 'shirty'. He also makes a more subtle point that litigants should heed. Tread warily!

Mostyn's warning is important, and to my mind, necessary and unsurprising. A friend, in discussion made the point "when in a pen with a bull, if you poke it with a stick, expect to get trampled." After repeatedly breaking court procedure, and being in a position to seek legal advice but choosing not to, the litigant then poked Mostyn by asking his clerk for a copy of the judicial complaints procedure. My friend's view was it was a "dumbassed thing to do" (colourful language, but he is American, so I forgive him).

If the court order was wrong, the litigant might have applied for an amendment under the slip rule. He might have sought a further hearing for amendment. He might have raised an appeal. Repeatedly emailing the judge... no.

Is the judgment arrogant? I don't think so. Mostyn is no fool, nor unable to look at realities for the people who walk into his court. He's outspoken. He knows he has this tendency. Mostyn, when he first became a judge had a piece of paper in front of him saying "shut up" because he has a natural tendency (from years of being perhaps the UK's top divorce lawyer) of speaking his mind. On this occasion, he's turned that piece of paper around and placed it under the litigant's nose.

Legal Aid Cuts and Alternatives
Mostyn also points out that the courts are having to deal with the fallout of the Government's legal aid cuts, with fewer resources than they had before. I don't doubt his clerk's frustration at this, and believe that sense of irritation is shared across the board. It's the arrogance of Government, the lack of thought for a safety net, the appallingly inadequate thought given to how litigants can be helped in absence of legal advice where blame needs to land. Not on this judge, or his clerk. Myself, I walked out of a meeting at Westminster on LAPSO, legal aid cuts, and there being no solution other than "something needs to be done by the next Parliament" and a belief by politicians that the horse was still in the stable when they smashed the stable door months before. 45,000 cases had legal aid before... and now don't. The services which were struggling before legal aid was withdrawn have had their funding, staffing and resources cut. Little wonder there are quite significant advice vacuums and the courts can't fill this void no matter how much people wish they would.

I think it foolish to take a view that this judgment doesn't recognise the difficulties faced by litigants-in-person. I take from the judgment that Mostyn understands the hardship enforced on litigants through the Government's withdrawal of legal aid. I don't doubt matters would have been handled differently had the litigant not had the ability to afford legal advice. From the judgment, it appears clear that on a number of occasions, Mostyn's clerk had explained matters, but Mostyn decided enough was enough.

It was and is unrealistic to expect the judiciary and their support staff to carry the weight of giving legal advice due to cuts, just as it is unrealistic to expect the third sector to adequately fill the void when their funding was also cut to the bone. Lord McNally actually laughed at these cuts in a LAPSO meeting I was at. Doing more, with fewer resources, is a pathetically unrealistic goal. A car crash was bound to happen, but the drunk driver behind the wheel was the Government. Drunk? Stoned off their box would be more accurate, and ne'er having had a driving lesson. Don't blame the judge for frustration at the traffic delay, nor pointing out the problems, and that sadly litigants now have to cope with understanding what at times is an overwhelming number of rules, procedures and process.

Mostyn's judgment makes several points:
  • The judiciary don't have the resources or time to act as an advice bureau... true;
  • If you're in a position to seek legal advice, do;
  • If you're not in a position to pay for legal advice, the onus is on you to research what you need to do, and how to go about it. A large part of what the Custody Minefield does is provide you with information to help (there's still more information we're working on, we offer the most detailed guides out there in a combined format, aimed at helping litigants-in-person, but our resources are limited too). We foresaw the Government was going to fail spectacularly in providing a safety net following legal aid cuts, and have done more to fill this gap than they did, with all their resources;
  • The difficulties experienced today by litigants-in-person now is due to the Government enacting changes with no preparation or consideration as to the practical difficulties it causes;
  • If you want the court to do something, you need to make a formal application according to court rules;
  • Don't treat the courts like a call centre, nor treat judges and their clerks like call centre staff;
  • Not all judges will be as patient or understanding as Mostyn;
  • Don't poke judges with a stick unless you're very, very, very sure of what you're doing, and that the judge is plainly wrong (and even then, take advice and think twice about whether the battle is worth it);
  • If you don't understand the rules (and even if you do), deference is a wise path to tread. Those who don't feel why, in this modern world, they should be respectful to what is 'just another human being' tend to get quite bruised.
The judgment is repeated below.