Advocate told off for late service on litigant in person
Late service of documents further weakens the position of LiPs, says Jackson J
The lawyer appearing for the applicant father in a child abduction case has been admonished for serving documents on the unrepresented mother at the door of the court.
'Court hearings are already difficult for [litigants in person], but many, being inexperienced, are hesitant to complain about matters such as late service,' said Mr Justice Peter Jackson in Re B (Litigants in person: timely service of documents).
'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.'
Unrepresented defendants are a frequent occurrence in child abduction cases, where applicants are entitled to unconditional legal aid, while legal aid for respondents is means and merits based.
Jackson J '“ who made headlines last month for being the first judge to use an emoji in a ruling '“ said the case was 'unfortunately not an unusual occurrence' and that it called for a remedy.
Reminding lawyers of the family courts rules on court bundles (see below), the judge said there were minimum requirements that should be adapted in individual cases to protect the rights of LiPs.
'The need for earlier preparation and service places obligations on advocates and those who instruct them, but that is necessary to prevent intrinsic unfairness to LiPs that may arise from late service,' he said.
'Applicants in international child abduction cases have the automatic benefit of legal aid and of being represented by a specialist lawyer on an approved panel. If the defendant is not represented, they can be at a significant disadvantage,' said Julia Thackray, family solicitor and course director at CLT.
'Where documents are delivered late, judges can order a relisting if it causes unfairness and they will have to balance dealing swiftly with abduction cases and the need for fairness. The remedy in this particular case '“ reminding all those acting in abduction cases involving litigants in person of the basic procedural requirements and the need for fairness in these difficult cases '“ is critical and timely.'
Court rules provide that an LiP should normally be served documents at least three days before the final hearing, especially where they do not speak English, usually by email, and in translated form if time permits.
The issue was raised in the Court of Appeal as far back as 2010 in the case of K (a child), where Lord Justice Munby said it wasn't fair on foreign nationals, even if they faced child abduction charges, to be unrepresented in cases involving complex issues of international family law.
More recently, Mr Justice Holman said in PH v AH that he found it '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.'
Holman J noted that increasingly, respondents would appear in person and that this was 'highly undesirable' and 'a denial of the essential ingredient of a fair trial of equality of arms.'
However, he added that judges '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.'
Jackson J's reminder to advocates, as per paragraph 11 of his judgment:
'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 six:
o The party preparing the bundle must provide a paginated index to all other parties not less than four working days before the hearing
o Where counsel is instructed, s/he must have a paginated bundle not less than three working days before the hearing
o The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than two working days before the hearing
o 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.'
Jean-Yves Gilg is editor in chief of Solicitors Journal