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.

PRESIDENT’S GUIDANCE ON INTERIM ORDERS: HOW LAWFUL?

Guidance on making of interim orders

Sir James Munby P has issued Practice Guidance dated 13 October 2014 and entitled: Family Court – duration of ex parte (without notice) orders (the PG). It is intended to apply (para 3) to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject-matter of the proceedings or the terms of the order.

The President does not refer to the existing procedural rules – namely Family Procedure Rules 2010 Part 20 (especially r 20.4) and its Practice Direction (especially para 4) – where much of what the PG sets out is already covered; nor to the discrete sets of rules in Parts 10 and 11 which deal with domestic abuse and forced marriage protection orders. In this field reference to Lord Hoffman it essential for any practitioner National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) [2009] UKPC 16, [2009] 1 WLR 1405 (opinion of Lord Hoffman; but a case not touched upon by the PG). Olint and other aspects of practice under FPR 2010 Parts 10, 11, 20 and 18) are fully covered by Family Court Practice 2014.

As will be seen, it is unlikely that much of the ‘guidance’ complies with existing procedural rules. If this is so, the guidance – issued as it is by the President as an administrator (ie not as a judge) – may be unlawful.

Family Procedure Rules 2010 Part 20: interim remedies

The regulatory starting point for ‘without notice’ (ex parte was supposed to have been superseded by ‘without notice’ in 1999: adopted in family proceedings in eg r 20.4(1)) is FPR 2010 Part 20 (derived from CPR 1998 Part 25, the reason for which was fully explained in the reports which preceded CPR 1998 in the mid-1990s). The fact that any order made under Part 20 must have a return date (which answers the question at para 1 which prompted this PG) is given away by the title of Part 20: ‘Interim remedies’. If an interim order is to be continued there must be a return date.

This assertion is backed up by PD20A para 5.1(c), which covers the same ground – if more economically – as the PG. It states what an interim injunction ‘must contain’, including:

(c) if the order is made without notice to any other party, a return date for a further hearing at which the other party can be present.

Part 20 interim remedy applications proceed automatically under the FPR 2010 Part 18 procedure; though it has to be said that this could be made clearer in the rules. Thus for example, PD20A paras 2 and 3 repeats much of what is in Part 18. The PG makes reference to the need for any interim order to comply with r 18.10(3) (para 5(v)).

For domestic abuse applications (Family Law Act 1996 Part 4) FPR 2010 r 10.2 is in similar terms to r 20.4. However, Part 10 comprises a complete code which is not subject to Part 18; so that for example it is not obvious that an order under the procedure in Part 10 must comply with r 18.10. In the same way Part 11 (forced marriage protection orders: Family Law Act 1996 Part 4A) contains a complete procedural code which is outside the PG; and under r 11.8 the court is empowered to make own initiative orders which may have a direction which enables a person served to make ‘representations’ (r 11.9). Neither Parts 10 nor 11 are referred to in the PG.

The return date

It is not clear what is the basis for the PG’s assertion that the injunction must be expressed to expire at a particular time (paras 5(ii) and (iv)). In Horgan v Horgan [2002] EWCA Civ 1371 Ward LJ suggested the following (para [6]):

A better practice, in my judgment, would be to limit the time for the injunction and the power of arrest so that they remained effective for no longer than the conclusion of the return hearing.

Thus an order might state, logically, that the making of the further order by the court was to be the time for termination of the interim order (which complies with the natural meaning of ‘interim’).

Paras 6 and 7 of the PG are mutually inconsistent. The first suggests an interim order can be extended in ‘box work’; whilst the second asserts the importance of the court ensuring that the burden on the applicant to prove that the order ‘should be extended’ (para 7) is discharged.

The significance of certain aspects of the draft order (at para 8 of the PG) is not explained – especially with litigants in person in mind (eg what does para 1 mean?). In other respects the draft order does not comply with the law or is inappropriate; and it is likely that it cannot apply in relation to applications under Parts 10 and 11 (as explained above):

  • Paragraph 1 is unclear (see above)
  • Para 2 does not comply with Ward LJ’s recommendation in Horgan above
  • The period referred to in para 4 is already set out in the rules as 7 days (r 18.11(2)), which appears to be mandatory
  • In this context ‘substance of evidence’ is unclear: evidence at Part 18 applications generally is by statement
  • It is not at all clear that para 6 is permitted by the existing rules (r 18.11 says only that a person ‘may apply’; and it should be recalled, perhaps, that a party court can be asked to deal with matters by telephone or video (PD18A paras 8 and 9).

So far as the draft order does not comply with the law or with existing procedural rules and practice directions it is unlikely to be lawful and should only be followed so far as it is consistent with the rules and law.

Finally the PG seems to have been made without proper regard for such restrictions on the issue of directions and guidance of this sort contained in and explained by the Court of Appeal in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171.

David Burrows

14 October 2014

PRACTICE GUIDANCE: FAMILY COURT – DURATION OF EX PARTE (WITHOUT NOTICE) ORDERS

 

Issued by the President of the Family Division on 13 October 2014

1          The Magistrates’ Association and the National Bench Chairs’ Forum have raised with me the question of whether it is proper to grant an ex parte non-molestation injunction[1] for an unlimited period. They suggest that practice varies. They express the view that to grant such an order for an unlimited time is wrong in principle.

2          In expressing that view, the Magistrates’ Association and the National Bench Chairs’ Forum are entirely correct. To grant an ex parte (without notice) injunction for an unlimited time is wrong in principle. The practice of granting such orders for an unlimited time must stop.

3          The same principles, as set out below, apply to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject-matter of the proceedings or the terms of the order.

4          The law is to be found in Horgan v Horgan [2002] EWCA Civ 1371, paras 5-6 (Ward LJ), R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin), paras 37-41 (Munby J), In re C (A Child) (Family Proceedings: Practice) [2013] EWCA Civ 1412, [2014] 1 WLR 2182, [2014] 1 FLR 1239, para 15 (Ryder LJ), and JM v CZ [2014] EWHC 1125 (Fam), paras 5-13 (Mostyn J).

5          The relevant principles, compliance with which is essential, are as follows:

  • An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date.
  • It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 4.30pm on 19 November 2014).
  • The duration of the order should not normally exceed 14 days.
  • The order must also specify the date, time and place of the hearing on the return day. It is usually convenient for this date to coincide with the expiry date of the order (eg, list the return day for 10.30am on 19 November 2014 and specify that the order expires at 4.30pm on 19 November 2014).
  • The order (see FPR 18.10(3)) “must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.” The phrase “liberty to apply on 24 hours’ notice” is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply on notice (the details of which and the need for which must be set out on the face of the order) to set aside or vary the order.
  • If the respondent does apply to set aside or vary the order the court must list the application as a matter or urgency, within a matter of days at most.

6          Experience suggests that in certain types of case, for example, non-molestation injunctions granted in accordance with Part IV of the Family Law Act 1996, the respondent frequently neither applies to set aside or vary the order nor attends the hearing on the return day. In such cases the court may decide to proceed in the way suggested by Mostyn J in JM v CZ [2014] EWHC 1125 (Fam), para 13:

“the return date should be listed, say, 14 days after the initial ex parte order had been made but that the respondent ought to confirm in writing, seven days before the return date, both to the applicant and to the court, whether he in fact wished to attend on the return date and to argue for variation or discharge of the order; and that if the respondent failed to write to the court within that period, it would be open to the applicant to notify the court that the return date should be vacated and to invite the court to extend the injunction as a matter of box work.”

7          Courts must remember that, whether or not the respondent attends on the return day, the respondent does not have to demonstrate that the order should not be extended. In every case the burden remains on the applicant to persuade the court that an ex parte (without notice) order should be extended.

8          To ensure compliance with these principles, it is suggested that the following form of order be used:

“1        Paragraph(s) [insert] of this order shall be effective against the respondent [insert names] once it is personally served on [him]/[her] [and/or] once [he]/[she] is made aware of the terms of this order whether by personal service or otherwise.

2          Paragraph(s) [insert] of this order shall last until [insert date and time] unless it is set aside or varied before then by an order of the court.

3          The case is listed for a further hearing in the Family Court sitting at [insert place] on [insert date] (‘the return date’), time estimate: [insert time]. At the hearing on the return date the court will reconsider the application and decide whether the order should continue. If the respondent does not attend on the date and at the time shown the court may make an order in [his]/[her] absence.

4          The respondent has the right to apply to the court at any time, and without waiting until the return date, to set aside or vary this order. [Insert if appropriate: The respondent must give [insert hours/days] [written] notice of the application to the [applicant]/[applicant’s solicitors].]

5          If the respondent intends to rely on any evidence in support of [his]/[her] application to set aside or vary this order, or intends to rely on any evidence to oppose the continuation of the order at the hearing on the return date, the substance of the evidence must be provided in writing to the [applicant]/[applicant’s solicitors] in advance.

[Add if appropriate]

6          If the respondent intends to oppose the continuation of the order on the return day [he]/[she] must notify the court [in writing or by email] no later than [insert date and time] that [he]/[she] intends to attend the hearing on the return day and to oppose the continuation of the order. If the respondent does not notify the court then the court may, if appropriate, make an order dispensing with the need for any attendance by the [applicant]/[applicant’s solicitors] on the return day and may, if appropriate, on the return day make an order extending the injunction.”

Sir James Munby PFD

13 October 2014

[1]               A non-molestation injunction is a form of personal protection order. An order made ex parte or without notice is a one-sided order made without warning.

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.