Litigants in Person Cases: It Doesn’t Have to Be Like This
Lesley Pendlebury Cox, Consultant with Gregory Rowcliffe Milners considers the issues arising from the increase in the number of self represented clients in family cases, its impact on family lawyers and their clients.
Lesley Pendlebury Cox, Consultant, Gregory Rowcliffe Milners
Increasing costs and cuts in public funding are just two of the factors leading to an escalation of the number of Litigants in Persons or Self Represented Litigants ("SRLs") as they must now be known. Of course, any individual unable to afford professional representation is surely entitled to represent him- or herself in court proceedings, especially when, as in family law, the desired objective may be something that he or she regards as paramount to the welfare of the children of the family. However, there is, almost inevitably, a downside. In any courtroom situation, quite understandably, a litigant in person will usually slow down the progress of a hearing leading to the case overrunning and increased costs. But is it really acceptable for the represented party's costs bill to increase as a direct result of the additional time and explanation needed to ensure that the unrepresented party may play a full and proper part in the proceedings? Does it have to be like this?
In his recent speech to the Resolution Conference, the President of the Family Division, Sir Nicholas Wall, accentuated that whereas in criminal proceedings most defendants are likely to have legal representation, those within the family sector "who wish to litigate and who cannot afford legal representation will be SRLs - and SRLs often with the most difficult and intransigent cases." At a personal level, the scale of the phenomenon is emphasised for me by the fact that currently in my caseload I have only one professional counterpart. I concede that my particular caseload comprises fewer but more long running and complex matters than perhaps an average caseload will. This nonetheless means that for me in almost every case my professional efforts run in tandem with those of a litigant in person. With average cases lasting years not months, some SRLs have become familiar to me. I have come to know their methods very well indeed.
The right of litigants to represent themselves, particularly in family law matters is a valuable one and groups such as Fathers4Justice and Families Need Fathers work tirelessly to support their members in such matters. The McKenzie friends provided by them are increasingly able and should be treated with deserved respect. However, against this must be balanced the fact that as Sir Nicholas Wall maintains, "although good lawyers cost money, they also save it." That is entirely acceptable if what is saved is cost and the time that court proceedings take.
As mentioned above, self-representation has unwelcome implications in terms of increased time and costs. Tasks such as drafting inevitably fall to the counsel or solicitor of the represented party and Judges are grateful for that. But as the represented client must pay for time and costs on all aspects of their case, ways must be found to minimise the perceived unfairness to the represented party. This is both in relation to the issue of cost and also in a situation where inevitably a Judge, in patiently ensuring that the SRL understands and is able to participate in the court process, may sometimes appear - if not to you then to the legally represented client - to give an impression of partiality.
Far harder to stomach when looking at the position of unrepresented litigants may be some of the "voluntary SRLs". This group comprises SRLs who can perfectly well afford legal representation but choose either to limit this - for example through the Direct Access Scheme - or not to have it at all. Some clients, particularly those on needs-based spousal maintenance, are understandably aggrieved to see their legal representative patiently trying to convince a SRL of something (and accumulating costs in doing so) that a trained professional opponent would not need to be told at all.
The less scrupulous SRLs - and these are fortunately in my experience a very small minority - can find many ways to disrupt or prolong litigation. I shall avoid setting out a detailed list of ways in which this may be done. However, one example of which I am aware is where a final hearing had to be rescheduled part way through because the SRL "had not understood" the Listing Notice and suddenly remembered that he had an urgent business meeting. A long running case was apparently hijacked from the Judge to whom it was reserved, purely on the basis of a plethora of calls and correspondence to the Listing Office.
Solicitors are coming to expect to have to defend their client against the methods of an SRL who appears not to be constrained by Rules which normally apply. How do you properly - and effectively - protect your client if, for example, a SRL writes direct to the Court about your client's behaviour? How do you balance a situation in a Courtroom when a SRL's "submissions" appear not to be submissions at all but are, effectively, "evidence" - given too late for you to challenge? Your client will want to have a right of reply. A tiny minority of SRLs can cause havoc with the proper progress of a case and also with your client's budget. A SRL's overzealous and sometimes inappropriate, pursuit of his or her own litigation objectives can have the effect of depleting the very financial resources that enable his counterpart to have proper legal representation (sometimes I have concluded that is at least part of the intention). In cases where the SRL is affluent and the represented party is in more straitened circumstances this is particularly ironic. It is also very unfair.
In some cases, the "voluntary" SRL appears to be motivated by a strong desire to control events. Often it seems that, whether deliberately or not, they perpetuate, within the litigation, the very conflict which brought their marriage to an end. Admittedly they are not the only ones who do this. Many represented parties have similar feelings. The difference is that in these cases their feelings, whether of bitterness, hostility or despair, are filtered through the conduit of professional representation by lawyers who are committed to a Code of Practice.
The consequence for the represented client may be devastating. It is appalling that a victim of domestic violence may face cross examination by his or her attacker. But cross examination by your angry or embittered spouse can be traumatic whatever the circumstance. It can assume a different order of unpleasantness than even a vigorous cross-examination by a professional advocate. Nor is it just the cross examination which can "undo" the client. It may be a malevolent stare. It may be an almost imperceptible whispered threat, as I have witnessed, from an abusive former partner to my client. Judges are commendably watchful but they cannot have eyes everywhere.
The consequence for solicitors may also be unpalatable. Routine correspondence, calls and e mails are no longer, apart from those with clients, exchanges between two professional lawyers, each constrained by professional standards of conduct and experience to "act in a manner which must promote the proper operation of the legal system". Instead, communications received will often be based on raw emotion. Solicitors may sometimes feel that they have become the direct target of a SRL's accumulated anger or distress. This may be particularly evident when a solicitor has done well for his client and the SRL perceives that he or she has "lost". Threats of physical harm are not uncommon. Even without these the experience can be incredibly exhausting and emotionally draining.
Younger solicitors may be particularly vulnerable to and affected by such behaviour. But, however experienced we may be, few of us have training that enables us to deal effectively with such aggression. This must be redressed.
Even the judiciary are clearly not immune from exposure to such behaviour.
However, the courtroom setting is designed precisely to bring order to chaos. There is a degree of protection, physical and psychological, afforded by the Judge's closed-off Bench. In some courts the tipstaff can be summoned. Panic buttons can be installed. Solicitors - and Court staff too - have none of that.
So what is to be done?
In the first place, in order to help us cope with the more debilitating aspects of the conduct of a powerful or abusive SRL we need to receive proper training which will give us the appropriate skills. It might be helpful for part of this training to be provided by professionals within the sphere of the behavioural sciences. They could perhaps design a sort of Anger Management Course which might formulate proposals as to how to cope with an opponent's anger, as well as how to formulate the most constructive response in these difficult cases.
Although the recent Civil Justice Council report Access to Justice for Litigants in Person (or self-represented litigants" was not written with the family court specifically in mind, we would do well to draw on its research and guidance. We should, however, bear in mind that the first of the terms of reference of that report was "to improve access to justice for litigants in person". The report gives specific guidance as to the measures to be adopted for the benefit of the SRL. This includes at page 87 an Appendix detailing the assistance that the SRL should be entitled to expect from lawyers representing the paying party. What is said there is entirely uncontroversial. However, the report does not focus on the way in which the existence of the SRL may impact on the represented client. It is important that the interests of this group are not neglected.
One of the report's many recommendations included the proposal that Mackenzie friends should themselves adopt a Code of Conduct. I believe we may need to go further. Perhaps we need to devise a Code of Conduct, to which any would-be SRL must submit in order to be allowed to represent him or herself. Continuous breaches could be punishable, initially by warnings, possibly accompanied by some form of Notice (similar to a Penal Notice) warning of a greater punishment that would be meted out in the event of a further breach. I accept that, whatever "ultimate sanction" were to be devised, this should not and could not breach the fundamental right of access to the judicial system.
It is encouraging to read in Ryder J's Fourth Update to the Family Justice Modernisation Programme that,
"There is a project to identify the court's expectations of unrepresented parties and vice versa so that cases involving unrepresented parties are not unfairly prejudiced in terms of their process. This will involve the provision of significant new materials to assist both represented parties who appear against those who are unrepresented and unrepresented parties to understand the expectations of the court and to abide by its procedures and practices."
This sounds like a very positive and welcome innovation.
It is important, nevertheless, that serious and careful thought is given to the question of the sanctions that might be applied in appropriate cases. Both rich and poor must take responsibility for their actions. If a SRL decides that he will represent himself in litigation, he is entitled to have clear guidelines as to the way in which the system works and what is expected of him, be it in the preparation of his case or in his general conduct. He also needs to be made accountable for his actions. In my opinion, it is this absence of any need to be accountable, that brings inherent unfairness to the system as it presently operates.
We need to find ways of alleviating the additional costs burden that can fall on the represented party. In financial remedies cases this may not be necessary. The party who "loses" - whether the represented party or the SRL - is likely here to face a Costs Order, even though, if it is not realistic to expect that these will be paid, such Orders may not be enforced without the leave of the Court.
In Children cases, however, costs orders will only be made where the litigation has been conducted in a way that is unreasonable. I wonder whether, even where the conduct of the case has been entirely reasonable, the SRL who can afford to do so should make a contribution to the costs of the represented party, particularly if that party is the weaker party in financial terms?
Perhaps all SRLs should be expected, as a condition of their entitlement to represent themselves, to make a contribution to a Central Fund which might be set up to provide some redress to the represented party. The required contribution could be in direct proportion to the size of the income of the SRP. If he has no current income beyond a minimum protected level of income to meet his own needs, his contribution could stand as a charge against any future earnings. This would not work without an injection of public funds...In cases where, through no fault of the represented party, that party's costs burden is grossly inflated by the unreasonable conduct of the SRP, it is appropriate to try and devise some method of compensation.
Above all, we need to work together to find ways of getting the best out of the situation with which we will increasingly be faced. I would welcome the setting up of workshops where solicitors can share their individual experiences and where, together, we can devise guidelines and strategies which will help us to operate efficiently, with minimal downside for our client, whether the opposing party is represented or not. Whether within this exercise or as an adjunct to it, I believe it may be valuable to increase the dialogue between our profession and the increasing number of SRLs. Despite the instances that I have here described, I am sure that many SRLs would welcome any co-operative action that might reduce the difficulties and uncertainties they also face within the present system. No doubt they find some of us just as difficult as we at times find some of them. The system will remain adversarial. Within that system we must work to develop greater understanding and mutual respect. The Family Procedure Rules 2010 exist as a navigational aid within the family legal system. They are applicable and available to the legal profession and SRLs alike. What is presently lacking is a Guide to Conduct to which both sections are willing and able to commit.
The increasing prevalence of the SRL is a challenging phenomenon for us all (not least the SRLs themselves who find themselves often through no fault of their own cast adrift on the Family Justice system without any professional support. Now is the time for the legal profession to make a serious commitment of its time and energy in responding to that challenge. I hope that Resolution and the Law Society will offer and review their guidance to their members on this issue. I hope that accredited practitioners will work together to share their experiences and find a way to surmount the many practical problems that currently exist to the advantage of SRLs, legally represented parties, the lawyers and the judiciary alike.