LITIGANTS IN PERSON: BEWARE

Court: not an ‘advice bureau’ for litigants in person

Mostyn J’s July 2014 judgement in Bakir v Downe [2014] EWHC 3318 (Fam) was transcribed at public expense because Mostyn J wanted to make a point about use of the court not being an advice bureau. The passage which has been – and doubtless will continue to be – quoted extensively already, is as follows:

[8] The courts are now being visited with an increasing number of informal applications made by litigants in person. As I have said in this case, Mr. Downe acts as a litigant in person by election [ie he has the means to pay but chooses not to]. I am taking the opportunity in this judgment, which will be transcribed at public expense and placed on Bailii, to explain, both for the benefit of Mr. Downe and for any other litigants in person, that the court does not afford any indulgences or deviations to the litigants in person from the clear procedure that is prescribed for the procedure that is prescribed for all applications that are made to the court. The court is not some kind of advice bureau for the benefit of litigants in person who do not understand how orders have been made. If a litigant in person wishes to make an application to the court, then he must do so in accordance with the procedure laid down by the law of the land.

Mostyn J then went on to explain the FPR 2010 Part 18 procedure in language which most litigants in person – and some modern lawyers – will struggle to understand; and which make assumptions which may come close to breaching European Convention 1950 Art 6(1):

[9] [The Part 18 procedure] requires an application to be made. It requires a fee to be paid. It requires a draft order to be supplied. It requires the relief that is sought to be clearly specified. None of that has happened here. Even now I am unable to understand what relief Mr. Downe is seeking in circumstances where his complaints are entirely academic by virtue of the fresh undertakings given to Moor J. on 27th June 2014. As I have already said, but I reiterate, there is no requirement for an undertaking which is given in the face of the court and recorded in the transcript to be separately recorded in a general form of undertaking (emphasis added).

There was nothing for Mostyn J to decide (as he says); though he deemed an application and then dismissed it with costs against Mr Downe. The note issued by Mostyn J, and its publication at public expense, was an indulgence to satisfy his irritation at his clerk being inconvenienced. The case raises further issues.

Undertakings and orders

The case concerned a return date freezing order injunction application where, says the judge:

[1] … I was doubtful whether the relevant criteria for making an ex parte freezing order, as summarised and explained by me in the case of UL v BK [reference below], had been met.  However, the Respondent husband offered me in court an undertaking to preserve two funds [set out]….

[2] On that basis counsel for the wife, Mr. Mitropoulos, drafted an order containing that undertaking and in accordance with the usual practice drafted a general form of undertaking for Mr. Downe to sign.  Mr. Downe, however, refused to sign the general form of undertaking.

The judge went on to confirm that the signing of the form ‘is not a requirement for the giving of an effective undertaking.  That undertaking had plainly been given in the face of the court’. He had already set out his exchange with Mr Downe in para [1].

If authority for this proposition is required it can be found in Zipher Limited v Markem Systems and Technologies [2009] EWCA Civ 44 and Hussain (cited below). In Zipher Lord Neuberger MR said:

[19] An undertaking is a very serious matter with potentially very serious consequences. It is a solemn promise to the court, breach of which can lead to imprisonment or a heavy fine. Accordingly, there should never be room for argument as to whether or not an undertaking has been given. … Accordingly, any undertaking should be expressed in full and clear terms and should also be recorded in writing.

[20] None of this is either controversial or original. Unsurprisingly, it is well established. In Hussain v Hussain [1986] Fam 134, Sir John Donaldson MR said at 139H that “an undertaking to the court is as solemn, binding and effective as an order of the court in like terms”. He went on to observe at 140E that “it is in all cases highly desirable that any undertaking to the court shall be recorded and served on the giver personally”. As he immediately went on to say, the “most obvious and convenient way … is to record the undertaking in an order of the court …”. Neill LJ took the same view, stating at 142A-B that “the general practice to be adopted” was that the “undertaking should be included in a recital or preamble in the order of the court”, which should be issued and served on the person who gave the undertaking with a penal notice. He went on to emphasise the importance of clarity and certainty in relation to what was required by any undertaking, and the consequences of it being breached. Ralph Gibson LJ agreed with both judgments.

As can be seen the requirements of FPR 2010 as to signature (eg at Practice Direction 33A: as is well known a practice direction cannot change the law, as set out in Hussain) is beyond anything that the common law requires.

If judges drew up the orders themselves and ensured that their order was endorsed with a penal notice, sealed and served – if possible before the undertaker (sorry, but that is what s/he is) leaves court – then many of the problems which arose in this case would have been avoided. After all in these days of unrepresented litigants presumably the courts are becoming used to drawing up their own orders, and to serving them for parties.

‘…explained by me in the case of UL v BK…’

The quote above is a reference to UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam) in which Mostyn J again was not dealing with any live issue: he made clear at para [7] of a 80 paragraph judgment that the wife’s claim was hopeless. Most of the rest of what he said was obiter and consists of some dangerous assertions of his views and gratuitous guidance to practising lawyers (Imerman documents (after Imerman v Tchenguiz and ors [2010] EWCA Civ 908 and the cheat’s charter about which I wrote in https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ .)

Now is not the time to examine in detail Mostyn J’s discussion – for that is all it is – of the law in that case. He confuses inherent (codified in Senior Courts Act 1981 s 37: what he calls a ‘hybrid’ jurisdiction), with statutory, jurisdiction (as in Matrimonial Causes Act 1973 s 37(2): ie by which a new remedy is created) to grant an injunction. On the basis of his confusion he proceeded to say that the Court of Appeal and two of his brother puisne judges got the law wrong (including Anthony Lincoln J, who well understood the difference between inherent and statutory jurisdictions in Shipman v Shipman [1991] 1 FLR 250).

He then spent some 30 paragraphs explaining what should be done; and repeated what is in such text books as Family Court Practice (eg under FPR 2010 Part 20, to which he could have referred practitioners). He concluded with his gratuitous and unprincipled guidance on ‘illegitimately obtained documents’.

Family Procedure Rules 2010 Part 18: European Convention 1950 Article 6

What will a litigant in person make of the word ‘relief’ (see para 9 above)? For many it is associated with passing wind or more. The modern word is ‘remedy’, which accords with the original Latin ubi jus ibi remedium (where there is a law, there must be a remedy). And where can a lay person find an idea of what the remedies might be; and, more to the point, and so they get their application on the road, what draft orders there might be to seek those remedies. I can understand Mostyn J’s irritation with Mr Downe; but a modern judge is not paid to be irritated by this sort of thing.

If judges approach cases in the way that Mostyn J did, there is a real question as to whether the Family Division is complying with its duties to provide a fair trial. I have appeared before Mostyn J in a mood to ignore rule, practice guidance and everything else. He asserted principles of procedure which were not true (and he knew it, though would not have the grace to admit his errors). I could put him right: I knew the rules and that rules he referred to did not exist. Where is a litigant in person to be where the law is ignored in such a way? (Two QCs appeared before him in UL v BK and seem to have let him get away with it; or, in fairness, for the mangled wife there was no possibility of appeal.)

English courts must comply with the Convention (Human Rights Act 1998 s 6(1) and (3)(a)); and if they do not they can be hauled up on appeal (HRA 1998 s 9(1)). Judicial unhelpfulness and obstructiveness towards litigant in person must rank towards failure to provide a fair trial.

‘… the procedure laid down by the law of the land…’

It would be pedantic to point out that procedure is not ‘the law of the land’; but the point is worth making. Modern Family Division and family court judges are slack with their regard for the vires of the rules and of what they are doing. (Three examples appear above; and Mostyn J’s assertions about hybrid jurisdiction and his failure to think through the results of his Imerman guidance are examples of this).

It is worth recalling always what is law, what is procedure which guides the law, and what is mere direction and guidance which should only supplement rules. A litigant in person cannot be expected to know all this. Lawyers should do so and challenge the rule-makers where needed. Judges – if they are to provide a fair trial – should be willing to do the same. If they do not the rule of law in family courts will wither increasingly and unlawfulness – eg Sir James Munby P’s Alsatia (see Richardson v Richardson [2011] EWCA Civ 79) – will thrive.

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