If we can’t navigate the system what hope for litigants in person?

POST UPDATED 24 SEPTEMBER 2024

As far as we know legal bloggers at The Transparency Project are the only reporters who have tried to report on family court cases being dealt with by magistrates. Given that these ordinary members of the public are given quite significant powers over families and children, we thought it was important that we tried to observe and report, even if journalists have not yet done so. Our experience has been mixed. This report tells you about one such attempt, why it has been so frustrating, and what it has revealed about the state of open justice and the state of our courts more generally. It is not a pretty picture. Our more positive experiences can be found here and here.

On 12 April legal blogger Paul notified the court by email that he wanted to attend a hearing the following day at East London Family Court, where the reporting pilot (to increase transparency) is in operation. Although the pilot does not yet cover magistrates in this court legal bloggers has a right to attend hearings in any family court regardless. He attended ready to make an application for permission to report at the end of the hearing. But he was kicked out before the hearing began, for reasons which we think were wrong, after a secret ‘hearing’ with Paul present and the parties excluded.

We haven’t yet been able to write about that fully because it took us until 17 June to secure permission (from a judge, having made an application) to report that ‘hearing’ and to obtain permission to seek a transcript. Now, at the very end of July, we’ve all but given up waiting for that transcript and are going to tell you about the infuriating and ultimately ineffectual process needed just to write a simple report about our attempts to report on the work of magistrates.

Contacting the court

When you email East London Family Court’s inbox, you get a lengthy, rangy, and extremely out of date auto response, and (in a lengthy set of attached instructions) a warning about a ten day turnaround time.

PLEASE DO NOT REPLY TO THIS MESSAGE

Due to coronavirus (COVID-19), we might take longer to answer your e-mail. We’ll get back to you as soon as possible.

Fortunately our application directly to the judge responsible for the Reporting Pilot was accepted and dealt with by email, meaning that it didn’t get stuck in that generic inbox waiting for processing. The judges were very accommodating and processed our request as swiftly as possible. From our perspective it was still quite slow – the court didn’t grant our application until 17 June – almost 9 weeks after the hearing, and 6 after our application. However, the judges told us that they were very busy, kept us updated. We accept that they were doing their best and that their first priority has to be the substantive decisions in the many cases they are dealing with. Nonetheless this is a long time to wait for a decision on what we think was a straightforward request.

Awaiting a transcript

Once we had permission we hoped to be able to get a transcript within a couple of weeks and to be able to report in June. We wanted the transcript so we could ensure our report of the reasons the magistrates gave for ejecting Paul was fair and accurate, since the documentation we were sent apparently summarising the reasons for the decision did not match Paul’s recollection of what was actually said in the hearing. In spite of the fact that we sent our completed transcript request the same day that we received permission to obtain one (17 June), as at 29 July we were still waiting for the court to send the audio recording to the transcribers, who have been on standby for weeks. In fact, just as we were finalising this post we received an email from the court confirming that they had just sent the audio to the transcribers. We hope therefore to be able to report substantively quite soon.

Between 17 June and 29 July we repeatedly chased the court. Initially, via the court clerk and cc’ing the inbox (27 Jun), since we had received no acknowledgment of receipt. The clerk confirmed that the paperwork had been passed to the ‘correct team’. When we asked if we could contact that team we were told to use the generic email. We emailed the inbox for an update that day. No reply. We tried again on 10 July. No reply. We checked in regularly with the transcribers – have you received the audio? No.

On 17 July we tried ringing the court. Here we were met with an automated message telling us to expect a 2 – 20 week turnaround time, warnings not to repeatedly chase for a response and statements to the effect that abuse to court staff will not be tolerated. After waiting several minutes on hold we were still at number 19 in the queue and abandoned our attempt.

Finally, on 23 July, we emailed the judge who had approved our original request, HHJ Reardon. We were fortunate to have her direct email address since our application had largely been dealt with by direct email. HHJ Reardon was as helpful as she could be promising to see what she could do before going on leave.

On Monday (29 July), almost a week later, we finally received an email from someone in the court office, in response to our email of 23 July. This is the first acknowledgment of receipt by the ‘correct department’. There was an apology for delay in responding, but the message said ‘we are waiting for the audio’. When we queried what this meant, given that it is the court who hold the audio in the first place, we were told that

‘it is a process in which we send the audio request to clerks, who copy the audio on CD and send it to us. The transcript you requested was done by Magistrates, and we are awaiting audio from the legal team court room.’

We didn’t really think that explained a delay of six weeks.

Baffling and frustrating

It appeared to us that the court was either sitting on the audio or had simply not actioned the request. We were being stopped from reporting on that same court’s peremptory ejection of our reporter from a hearing he was entitled to attend, in a court which is supposed to be spearheading open justice, because the left hand was waiting for the right hand to pull its finger out. Such a delay in providing us with access to the information the court has deemed us to be entitled to, is a breach of our Art 10 rights of freedom of speech. And, although later in the day we received welcome confirmation that the audio has been sent to the transcribers, the bird is not yet in the hand, and the postponement of our lawful reporting continues.

When people lament the lack of reporting under the open justice pilot as if the reporters aren’t trying hard enough, it is this sort of time absorbing effort outside the court room that we point them to. It should be simple, but it often isn’t. Legal blogging is not quick. As part and parcel of each blog post we spend time at court, time writing up our posts, time dismantling the assorted barriers to contemporaneous (or any) reporting, explaining the law and open justice, dealing with administrative hurdles etc. Unlike journalists, we don’t get paid for this work.

So: make it easier, and we will report more.

As lawyers who aren’t intimidated by the system, we have found the process of securing permission to report and to obtain a transcript both baffling and frustrating, even with the advantage of being able to contact the judge directly, which most litigants in person cannot do (and which we would only do sparingly). We have been struck by what this tells us about the likely experience of litigants in person.

Many litigants in person need urgently to obtain transcripts of judgments for the purposes of an appeal. The transcript request form is complicated and the instructions on where to send it and about cost and payment are scant. We cannot imagine how a litigant in person would fare trying to get any sense out of the ELFC inbox or telephone system and we can well see why occasionally litigants may express frustration at the unfortunate person who eventually picks up the call, as the recorded message hints at (though we do not condone abuse to court staff). We can well imagine that litigants in person would fail to appreciate or follow the stringent instructions on the format of emails, resulting in a response being delayed or their email not being dealt with at all. It is well known that difficulties obtaining transcripts often cause delays at appellate stage and add to the work of the Civil Appeals Office at the court of Appeal. It is little wonder if litigants in person find this difficult to resolve.

Whilst all the court staff and judges we have dealt with have been polite and helpful insofar as they have been able, if our experience of the ELFC office is typical (and we’ve no reason to think it isn’t) then it is indicative of a very overwhelmed court process that is utterly inaccessible to litigants and which is unable to meet their needs.

We note that according to 2023 statistics ELFC was one of only 3 courts in England and Wales with a private law case load over 2000, almost 70% of which involve one or more litigants in person, and has the third highest public law caseload of all the courts in England and Wales. However, we doubt that ELFC is alone in being difficult to contact or communicate with. It is commendable that on top of their huge workload, the judges at this court are trying to manage the demands of the Reporting Pilot. We hope that next time we attend to observe an ELFC hearing before magistrates we will be able to make a more positive report – assuming we are actually allowed in this time – as we have done for hearings before the judges.

Update – more transcript hassle

When we wrote this post in early August we weren’t sure how long the transcript would take to arrive. But on 22 August, a transcript landed in our inbox. Great news. Except, it wasn’t what we’d asked for. It was the transcript of the entire hearing, including the part we had been excluded from – which we had not sought and which the judge had not given us permission to access. The transcript was about 60 pages long, only 6 of which related to Paul’s attendance. The following day we received an invoice four times the amount originally quoted. This was not good.

Whilst initially the transcription company attempted to tell us it was our fault for not being clear enough in our request, they ultimately accepted that this was in fact their error not ours (our application and the order were both perfectly clear) and we now have a much shorter transcript and a much more modest invoice. We have of course notified the court of the issue and deleted the longer transcript without reading. We finally received the correct transcript on 2 September, some 2 ½ months after it was first requested and almost five months after the hearing.

Due to our other commitments we’ve only now (late September) been able to write this update and publish our related posts.

You can read Paul’s account of his legal blogging experience here, and our analysis of what the transcript reveals here.