Many people find themselves whether by choice or not before the family court without legal...
Many people find themselves whether by choice or not before the family court without legal representation. Usually this is down to cost although sometimes it is a deliberate plan to try and delay proceedings, not comply with court directions or to attempt to cost the other party more.
In a recent case Mainwaring v Bailey [2024] Mr M made what was described by the court as a “hopeless” appeal. The Judge clarified how the court should treat litigants in person as follows:
“litigants in person as much as a represented party are required to comply with the procedural rules on appeal”. He went on to quote McFarlane LJ in an earlier case who said, “the fact that an applicant is a litigant in person may cause a judge to spend more time explaining the process and the requirements but that fact is not and should not be a reason for relaxing or ignoring the ordinary procedural structure of an appeal or the requirements of the rules.”
The same is true of litigants in person during any sort of family proceedings. Whilst the judge may assist a LIP to some extent during a hearing by explaining the rules and procedure, the rules should be applied consistently by everyone.
The main authority for this is Barton v Wright Hassell LLP [2018]. It was made clear in that case that there are no special rules just because a person does not have a lawyer. In the Judgment it was stated:
“In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted some litigants may have little option but to represent themselves. That lack of representation will often justify making allowances in making case management decisions and in conducting hearings, but it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules….. The rules do not in any relevant respect distinguish between represented and unrepresented parties….. Unless the rules and practise directions are particularly inaccessible or obscure it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”
It follows that being unrepresented should not be used as a defence for litigation misconduct or flouting the rules.