Barely a week goes by without lawyers reflecting on the impact of the surge in the number of litigants in person (LIPs) on the court system. In October 2016 government statistics confirmed that in 34% of private law disputes neither party are represented by either solicitor or counsel; the highest rate since legal aid was removed from the majority of such cases. This week we have Mr Justice Peter Jackson’s judgment in Re B (Litigants in person: timely service of documents)  EWHC 2365 (Fam) where counsel was criticised, and an adjournment allowed, for serving a position statement on a LIP on the day of the hearing.
The case concerned a mother who wrongly removed a teenager from a convention country to England in February 2016. Father launched Hague Convention proceedings which the mother defended on the basis that the child objected to the return. At a directions appointment in May 2016 where the father was represented by counsel and the mother appeared as a LIP without an interpreter, standard directions were given for the final hearing. No specific direction was given for timely service of documents on the mother.
On the morning of the hearing counsel for father provided the court with his position statement (14 pages) and four law reports (100 pages). He had also filed these the night before by email apologising for their lateness. Mother, who was again unrepresented, was provided with these documents at court for the first time. She was assisted in reading them (or attempting to read them) with a court appointed interpreter.
In a judgment, published with the approval of the President of the Family Division, Mr Justice Peter Jackson consequently admonished father’s counsel for the late service of such documents and concluded that
“where one party is represented and the other is a LIP, the court should direct as a matter of course that the Practice Direction documents under PD27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email should be specified. Where time permits, the courts should consider directing that the key documents are served with a translation. In cases where late service on a LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected.”
The reality is that LIPs frequently appear in child abduction cases where applicants are entitled to unconditional legal aid, while legal aid for respondents is means and merits based. Holman J considered the issue in PH v AH  EWHC 1131 (Fam) where it thought it was
“grave, if not scandalous, that in applications under the Hague Convention non means tested publicly funded legal aid is automatically made available for applicants, but not for respondents. It is indeed difficult for respondents to obtain legal aid in relation to these cases, and increasingly they appear in person. I regard that as highly undesirable, and indeed a denial of the essential ingredient of a fair trial of equality of arms. But that is the position that has now been reached in this country…One simply cannot go on and on and on adjourning applications under the Hague Convention on the off chance that at some later date a respondent parent may obtain some form of legal aid or legal representation.”
Whichever political party is running the government there seems little enthusiasm or indeed appetite to change the rules on legal aid.
So what does PD 27A say?
‘PD 27A is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements, but importantly it makes clear at 2.1 that these are subject to specific directions in any particular case. Under paragraph 6:
- The party preparing the bundle must provide a paginated index to all other parties not less than 4 working days before the hearing
- Where counsel is instructed, s/he must have a paginated bundle not less than 3 working days before the hearing
- The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than 2 working days before the hearing
- The PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule does not provide for service on the other parties, but the implication must be that the document will be sent to them no later than that.’
These rules have been around for a while now but there seems to be little compliance. Solicitors are already struggling with their workload and it remains rare (although it happened in this case) for counsel to get the papers more than a day before a hearing.
Mr Justice Peter Jackson confirmed that the position statement was “of real assistance to the court”. Position statements can give a hearing a very helpful steer both as to the practicalities of a case and the applicable law. However many advocates will now have to think twice about drafting a position statement if they are against a LIP where there could now be a risk of an adjournment and the reality of wasted costs for their client. Also, who would pick up the cost (not to mention the time constraint) of having such a document translated? It may work where one party has legal aid (although prior authority may still be required for the translation of such documents), but if one party is already struggling to pay for legal representation, adjournments and additional disbursements often become crippling.
I think this case has wider importance. It is not uncommon for authors of s.7 reports to file them on the morning of trial. Sometimes by design, for example to fit within a tight court deadline (“the s. 7 author to file and serve on the morning of the final hearing”). On occasions simply through lateness or some other such reason. If one party (or indeed both) are LIPs faced with a s.7 report on the day of trial then isn’t this inherently unfair? Particularly where Mr Justice Peter Jackson confirms that:
‘It might be added that late service of documents further weakens the position of LiPs by removing any opportunity they may have to seek advice and explanation ahead of the hearing from those who may be familiar with the system and the language.’
Timing will have to be carefully considered. Advocates and courts will have to be very conscious to ensure that compliance with PD27A becomes the norm rather than the exception. With the courts already creaking under the number of new cases and the time it takes for resolution, will we now be facing a fresh wave of adjournments to guarantee, as we must, a right to a fair trial?
To assist litigants in person in the family courts I have co-written a book on How to Represent Yourself in the Family Court