False economies afflicting courts

The implementation of the Legal Aid, Sentencing and Punishment of Offenders Act, and its consequent removal of public funding from most family law cases, is having a huge impact, not only on litigants, but on court time.

In Bristol, far fewer cases are now listed because the majority of the parties are without legal representation and, unsurprisingly, they tend not to get together with their former partner to try and narrow the issues. Much of the longer hearing is spent not only explaining the process to the parties, but also calming them down. Often they see it as an opportunity to vent their hate of their former loved one; a parent who focuses on the best interests of their child is a rarity indeed.

And what about financial remedy cases where both parties are unrepresented? What if one party is alleging that the other has salted away, or hidden, assets?

How is a judge to pursue that allegation without the assistance of lawyers? And, if not, how can a judge achieve a fair outcome? There has also been huge concern on the part of judges regarding the drafting of consent orders for parties in person when they reach agreement, say at a financial dispute resolution appointment. What if they overlook capital gains tax or other implications, or simply forget to add a crucial provision?

Although they will almost certainly be covered by judicial immunity, many are, understandably, declining to draft and, on the basis the parties have assets, inviting them to go to lawyers to draft the agreement for them.

The Court of Appeal has recently had a similar experience. In L v R [2015] EWCA Civ 61, a husband, acting in person in divorce proceedings, applied to the police for disclosure of a complaint made against him, allegedly by a woman he said was having an affair with his wife. The judge at first instance refused his application, in essence applying Family Procedure Rule 21.2(3) and finding that it was not ‘necessary in order to dispose fairly of the proceedings or to save costs’. This was on the basis that there was already plenty of other material he could use to advance his case of her unreasonable behaviour, namely emails, advertisements on Gumtree and so on.

Furthermore, even if a copy of the statement had been forthcoming, unless the maker of it was available to give evidence to the court at the final hearing, it would have been no more than hearsay evidence. This was also a case management decision at first instance and, of course, there are very limited grounds on which the Court of Appeal could properly interfere with such decisions.

Accordingly, the court dismissed the appeal, but it also took the opportunity of expressing its dissatisfaction with the fact that both parties were unrepresented.

Aikens LJ said: ‘Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a larger number of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time.

‘The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.’

District Judge Julie Exton sits at the Bristol Civil and Family Justice Centre. She is president of the Association of Her Majesty’s District Judges