Conducting your own case as a litigant in person (LiP) is hard enough as it is, without being given a massive bundle of the other side’s documents and law reports at the door of the court, just as the hearing is about to begin. Last week a judge in the High Court issued a judgment making clear that this was not good enough, and setting out how it should be managed in future.
In Re B (Litigants in Person: Timely Service of Documents) [2016] EWHC 2365 (Fam) ; [2016] WLR (D) 502, the litigant in person, as a foreign national, had the additional difficulty of not speaking English. The case was about child abduction (in the sense of wrongly removing a child from one jurisdiction to another). The unrepresented mother was alleged to have wrongfully taken her teenage child from another country to England. The father brought proceedings under the Hague Convention on Child Abduction. At an initial hearing in May a date was set in July to hear the case with interpreters but apparently no directions were given on the serving of documents on the mother.
At the main hearing in July the father was represented by counsel who had been instructed ten days earlier, but who did not file a position statement with the judge until the evening before the hearing, and only supplied the position statement (14 pages) and four law reports (another 100 pages) to the unrepresented mother on the morning of the hearing.
Mr Justice Peter Jackson said this was “unfortunately not an unusual occurrence”, particularly in child abduction cases where the applicant could get unconditional legal aid and be represented, while the respondent (the alleged abductor) was only entitled to means and merits-based legal aid, and much more likely to be unrepresented. “The possible unfairness arising from this imbalance have been repeatedly stressed”, he said, citing the earlier case of Re K (A Child) [2010] EWCA Civ 1546 at [ 34] and [46] .
Moreover “It is obvious that the right to a fair trial includes the right to know the case one has to meet.”
He therefore issued a judgment making clear what should happen in future in such a case. He said, in a helpful summary at para 2:
Where one party is represented and the other is a LIP, the court should normally 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 court 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 “Practice Direction documents” to which he refers are the supplementary documents required to be served under Practice Direction 27A of the Family Procedure Rules on court bundles, which sets out the basic rules, but makes clear that these are subject to specific directions in any particular case.
NB. This judgment does not cover the position where the party who is supposed to supply the bundle is a litigant in person. That is covered by para 3.1 of PD 27A, which says:
A bundle for the use of the court at the hearing shall be provided by the party in the position of applicant at the hearing (or, if there are cross-applications, by the party whose application was first in time) or, if that person is a litigant in person, by the first listed respondent who is not a litigant in person. Where all the parties are litigants in person none of them shall, unless the court otherwise directs, be obliged to provide a bundle, but any bundle which they choose to lodge must be prepared and lodged so as to comply with this practice direction.
If you would like more general advice on the preparation and conduct of a case as a litigant in person, I would recommend the book The Family Court without a Lawyer – A Handbook for Litigants in Person, by Lucy Reed.
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