Notice and a court’s own initiative order
In a lawful and in-time appeal in family proceedings (Family Procedure Rules 2010 (FPR 2010 Pt 30) from a deputy district judge in the Family Court (venue to remain anonymous for present) to a circuit judge, the judge dealing with the appeal has ordered as follows:
… that unless the Appellant [AB] complies with paragraph 3 of the order of 13th June 2019 [to obtain a transcript of the hearing appealed from] by no later than 4.00 pm on 8th August 2019 her request for permission to appeal shall stand struck out without further order and the hearing on 12th August 2019 shall be vacated.
The appeal is by a former wife (AB), who acts in person. She had representation at the hearing below, provided by the Bar pro bono unit (now called ‘Advocate’). The husband is represented by solicitors and a barrister.
The order is dated 31 July 2019. As quoted above, is it the extent of what it says. No more is said by the order of the matters referred to in the remainder of this note. It was received by AB on Saturday 3 August (five working days before the hearing of her appeal).
The law and ‘own initiative’ orders: Family Procedure Rules 2010 r 4.3
What of the law on all this, which the court and the circuit judge must apply? First FPR 2010 r 4.3 (as relevant here) says:
4.3 Court’s power to make an order of its own initiative
… (4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4) –
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.
These provisions should not come as a surprise to anyone. CPR 1998 r 3.3(4)-(6) is in exactly the same terms as the passage from FPR 2010 r 4.3 cited above. Any party who is told by a judge to do something – an ‘own initiative order’ – without having the opportunity to respond to the court, must be given a chance to do so. And that party – the main point of this note – must be told of the law which gives her or him ‘the right to make such application’ (r 4.3(5)(b)).
Powers of the appellate court; law and the grounds of appeal
The appellate court – as here – can strike out an appeal (FPR 2010 r 30.10(1)(a)) and for ‘compelling reason’ (FPR 2010 r 30.10(2)). No reasons – ‘compelling’ or otherwise – have been stated for the judge’s order in AB’s case, save as above. What is ‘compelling’ about striking out an appeal against an order where, with judge’s reading time included, the court has allowed one hour for the whole of the permission to appeal hearing, and for the appeal if permission is granted. Nothing is said about notice in r 30.10(1)(a); but is likely that basic fair trail (European Convention 1950 Art 6(1)) principles would require the courts to proceed under r 30.10(1) in the same way as is required by r 4.3(5).
For reading alone, before he gets to the transcript, the judge has 600 pages of the husband’s documents (which the deputy district judge allowed to be filed); thirty pages and more of skeleton arguments; ten case law authorities from the husband, and six from the wife (three from the House of Lords or Supreme Court: Piglowska v Piglowski  UKHL 27,  1 WLR 1360  2 FLR 763; White v White  1 AC 596,  2 FLR 981,  UKHL 54 and Wyatt v Vince  UKSC 14,  1 FLR 972). When I was provided with the bundles on the day before the hearing it took me most of three hours properly to read them; and when I have the husband’s skeleton argument a short time before the hearing with case law authorities, it took me most of an hour to skim through them. The judge hopes to read all that, plus the appeal notice and skeleton arguments, and hear permission to appeal, and the appeal as well in one hour. Justice cannot be done in that way.
As the grounds of appeal makes clear this appeal – as with most – turns on issues of law. A summary of the deputy district judge’s short judgment has been agreed. The appeal is against the ‘decision’ of the court below (r 30.12(1)). In a case like this a transcript is likely to add little (save expense to a financially stretched appellant). And it will only extend the judge’s reading time still further. If permission is granted and a transcript required a conditional permission can be ordered providing that the transcript be obtained.
The court has been told that not enough time has been allowed.
Family Court: acting unlawfully?
The unrepresented wife does not know the law. The court and the lawyers should do so. Yet in AB’s case none of (1) the husband’s lawyers (who should tell the court where the court appears to have got the law wrong); (2) the circuit judge who made the order under FPR 2010 r 4.3 (or without ‘compelling’ reason under r 30.10(1)(a)); or (3) the court office – none of these have ensured that the basic notice principles of r 4.3(5)(b) are complied with. And if the appeal is struck out, it will surely have been disposed of unlawfully, and contrary to principles in r 4.3(5)(b) which guarantee a fair trial in European Convention 1950 Art 6(1)?
How often are rules like this – the same rule in CPR 1998 r 3.3(5)(b) has been in operation for over 20 years – being ignored by courts and lawyers where parties are unrepresented; or even where they are represented? Failure to comply with basic protections of a fair trial clearly set out in the rules (FPR 2010 r 4.3(5)(b)) might be seen as bullying by the Family Court or the judges. And as an aside, it is worth noting that pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 both parties are likely to have been eligible for legal aid on the basis of their means and on the merit of a matrimonial financial relief case.