Saturday, October 15, 2011

A few more thoughts on litigants in person

As litigants in person seems to be the subject of the moment, I thought I would return briefly to S v AG, the case I reported yesterday, to point out a couple of things mentioned by Mr Justice Mostyn, typical of cases where parties are not professionally represented.

In S v AG neither party was professionally represented, a fact that, as he said, did not make Mr Justice Mostyn's task any easier. He explained (at paragraph 3):
"When I walked into Court on Monday 10 October 2011 I had only been given three documents relating to the case namely a letter dated 19 September 2011 from the Applicant's former solicitors explaining that they were no longer instructed; a Notice of Acting in Person; and a copy email from the Royal Mail purporting to show that the 2nd Respondent had been personally served with a freezing injunction. Beyond that I knew absolutely nothing about the case."
Now, if such a situation arose where either party had a solicitor, then the case would have been adjourned to some future date for it to be properly prepared, and the solicitor(s) severely reprimanded (and probably penalised with a wasted costs order). However, Justice Mostyn decided to proceed on the following day, after some basic preparation had been carried out. He also granted rights of audience to each party's McKenzie friend, one of whom also had to carry out translation duties, as the wife could not speak English.

All in all, a thoroughly unsatisfactory situation I would have thought, and certainly one which would have been quite different if either of the parties had been professionally represented. Of course, the litmus test is whether the final outcome of the case would have been any different, but that is almost impossible to say, without running the case through again with one or both of the parties having professional representation.

Another small consequence of no professional representation cropped up near the end of the judgment (paragraph 42):
"Both parties have raised conduct. It is a common feature of many financial remedy cases where parties represent themselves. Although both parties behaved poorly towards each other, H perhaps worse than W, the very high threshold mandated by the authorities (Miller and McFarlane, S v S, McCartney v Mills-McCartney [2008] 1 FLR 1508) for conduct to be capable of being reckoned is not crossed."
This certainly rings a bell with my own experience. I don't know how much time the parties spent arguing conduct, but it would obviously have been time (and effort) wasted, as any professional representative would surely have advised them.

Such are the pleasures that will soon surely be the commonplace experience for our judiciary...

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