A ‘HOSTILE’ MR JUSTICE MOSTYN, MR DOWNE AND LITIGANTS IN PERSON

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

The irritation of Mr Justice Mostyn (Mostyn J) in general, with litigants in person, and with a Mr Downe in particular, reverberates from his judgement in Bakir v Downe [2014] EWHC 3318 (Fam). It was ordered by Mostyn J to be published at public expense as a warning that he, at least, is intolerant of those who must (from force of financial circumstance), or who chose – as is their right – to conduct their own litigation was recently published, and includes:

[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.

So says Mostyn J – or he appears to say – courts are not there to help litigants in person. Unlike the ‘Good Samaritan’ – and, for that matter, many lawyers who act free (pro bono) – it is not the judge’s job, or that of the court staff, to cross the road.

Clarity and the family judge

It is not for the judge, for example, to help a layperson to understand rules (drafted, some of them, by one Mr Nicholas Mostyn). These rules can be stunning, I would guess, in their lack of ease of access for most ordinary people. Mostyn J went on:

[8] … 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 continued. He explained the Family Procedure Rules 2010 Part 18 procedure (ie ordinary court applications made in the course of existing family proceedings) in language which most litigants in person will find difficult – impossible perhaps – to understand:

[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 (italics added by me).

Undertakings and orders

The case concerned a return date freezing order injunction application (ie an order had been made, and it was coming back to court for it to be reconsidered, this time by Mostyn J). The judge said:

[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 [UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam),  Mostyn J], 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’. 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 in the Zipher quote below). Mostyn J does not mention these cases.

In the Zipher case 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 … 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.

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)? 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). Without some help from the court, where can a lay person find an idea of what the remedies might be.

Perhaps some people can understand Mostyn J’s irritation with Mr Downe; but a modern judge is not paid to be irritated by this sort of thing. By the way, I am familiar with work which is being done by the judiciary generally on how courts should deal with litigants in person: Judicial Working Group on Litigants in Person: report (Judiciary of England and Wales, July 2013) – http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf .

Family courts and a fair trail

If a family courts judge approaches a case in the way that Mostyn J did, there is a real question as to whether the court – in this case the High Court, Family Division – is complying with its duties to provide a fair trial. I have appeared before Mostyn J in a mood to ignore – or ride rough-shod – over the law, rules and existing practice guidance. I was able to put him right. I knew the rules and that rules he referred to did not exist. In the particular case (unreported) he ignored me, all the same.

Where is a litigant in person to be where basic rules of fairness, and sometimes the common law and procedure, are ignored in such a way as does Mostyn J?

English courts must comply with the Convention (Human Rights Act 1998 s 6(1) and (3)(a): ie to ensure a fair trial). If they do not they can be hauled up on appeal (HRA 1998 s 9(1)). Judicial unhelpfulness and obstructiveness towards litigants in person must rank firmly in the direction of a court’s failure to provide a fair trial.

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3 thoughts on “A ‘HOSTILE’ MR JUSTICE MOSTYN, MR DOWNE AND LITIGANTS IN PERSON

  1. David, it’s refreshing always to read your blogs which are as far removed from sycophancy as it’s possible to find, unlike so many.

    Didn’t the president direct that the family court standard orders should be re-written for the ordinary person to understand and use? I remember the first draft, which was published a little over a year ago, appeared to be a direct lift of Resolution’s long-standing precedents. While they are a useful guidance, they would not be understandable by the ordinary person. The project appears to have stalled.

    Mostyn’s comments reinforce my view that too many judges view themselves as being at the top of a pyramid, or on a pedestal, of “dispute resolvers”. They are not. They are part of a system. They are part of a team. They might hold a great deal of authority, but they should not be allowed to misuse that authority without sanction to the extent a few of those I’ve come across appear to do.

    Their job is to help others. “Others” come in all sorts of shapes and sizes, influenced by gender, culture, religion, ethnicity, health, intelligence, wealth and capacity. If the legal system only works for those who chose to engage and can afford to engage lawyers to overcome a process that cannot deal with power imbalances without help, then it’s broken.

    • It would be too easy to say I agree (which I do) and to fail to comment; so:

      (1) Para 4: I completely agree. Case management is central to what courts should be doing (but it is often fudged or not done in family courts: I’m just writing that up now). It should be (a) parallel to mediation and (b) where a case is to go to trial, it must be part of a co-operative attempt (with judge in the chair) to get the case on to trial with as much agreement of documents, issues, evidnce etc. Case mangemt done properly by a CM judge, and the power imbalance point, I hope recedes or disappears.

      (2) Court orders: clarity is at the root of all this; and the draft orders don’t scratch that. And the orders issue goes on to things like court role in drafting, autonomy (per Radmacher) etc – how long have you got, by the way?…

      (3) From which it follows, sort of: I completely agree with para 3 of waht you say. For all his mathematical and probing ability (as advocate) Mostyn J is not a very good lawyer; and I fear he may be a bully: not something I say lightly; but I do so from my own evidnce and that of case reports. Audi alterem partem (hear both/all sides) is not always a concept which comes easily to him.

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