Judges, Lawyers and the Litigant in Person

According to the most recent version of The Equal Treatment Bench Book, at any court hearing a judge should aim to ensure that Litigants in Person understand what is going on and what is expected of them at all stages of the proceedings – before, during and after any attendances at a hearing. This means ensuring that:

Most judges acknowledge that dealing with a case involving a Litigant in Person can be a challenge.  More often than not, the Judge treads a fine line between making sure a hearing is productive and worthwhile, whilst at the same time, ensuring that the unrepresented party has a fair and proper hearing.  A Litigant in Person is expected to comply with all the court rules and procedures as confirmed in Barton v Wright Hassell LLP (2008) UKSC Civ12 but there will often be a need to take a more flexible approach in family cases as stated by Munby LJ in Re C [2012] EWCA Civ 1489.

A recent case in the Court of Appeal revealed that a judge can go too far in attempting to direct the case in a particular direction in order to assist the court process.

In the case of R v Inkster [2020] EWCA Crim 796 the Court of Appeal was satisfied that the Circuit Judge’s uninvited interventions and the consequent impact upon the unrepresented appellant, created inappropriate pressure on the appellant’s freedom of choice. The appellant had pleaded guilty to three counts of breach of a non molestation order and was sentenced to a conditional discharge for six months. The primary ground in the appeal was the appellant’s decision to change his plea and whether it was a voluntary choice. The pressure placed on the appellant by the judge, resulted in the appellant feeling he had no choice but to plead guilty.  The appellant was unrepresented at the hearing in the lower court and argued that he was in an unfamiliar environment. At the appeal, it was suggested by the Crown that the appellant was an intelligent and articulate man who chose not to be represented. He understood the process and engaged with it. He understood the law and was capable of representing himself. The Court of Appeal rejected these arguments as the trial judge had effectively advised the appellant as to a particular course of action.

The moral of the story is that a judge must exercise his/her role with great care when dealing with a case involving a Litigant in Person. The judge appears to have attempted to assist the case by expressing his view in such terms that the unrepresented party felt he had no choice but to follow such advice. This was clearly exceeding his role and such intervention proved to be incorrect in law.

Another aspect of this case was the involvement of Counsel for the Crown at the first hearing, who volunteered to speak to the appellant during the luncheon break and ‘act as a wise ear’. Counsel appears to have given advice to the appellant which may have led the appellant to believe he should follow the judge’s indications. He seems to have done so with every good intention of assisting the court as well as the appellant. The Court of Appeal took the view that by meeting with the appellant, Counsel may have made the situation worse.

What can court advocates learn from this case ?

The usual ground rules in cases involving a Litigant in Person are the same whatever the nature of the proceedings: criminal, civil or family proceedings. A judge can easily fall foul of the guidance given to him in his/her training and manual books of authority. As part of our duty to the court, advocates may need to assist the judge by drawing his/her attention to the possibility that there could be trouble ahead and steer him/her in the right direction. A lawyer’s paramount duty is to the court and to the administration of justice Legal Services Act 2007 s1(3)

The lawyer has the usual professional responsibility to work with the Litigant in Person and offer assistance if this helps progress in the case and in turn assists the court. An advocate is under no obligation to help the Litigant in Person to run their case or take action on a Litigant in Person’s behalf. By doing so, the lawyer might be failing in his duty  to his own client. Khudados v Hayden [2007] EWCA Civ 1316 @ paragraph 38. Furthermore, giving advice and assistance to an opponent could compromise the court proceedings. They do so at their peril, as illustrated by the Inkster case.

A few suggestions

 Lawyers become familiar with their professional rules regarding their role in working with a Litigant in Person;

  1. Lawyers should forewarn their client at an early stage as to how working with a Litigant in Person impacts on their case;
  2. Lawyers should think carefully about where the boundaries are drawn between their duty to the court, their duty to their client and a working relationship with an unrepresented opponent.

Stuart Barlow author of A Practical Guide to Working with Litigants in Person and McKenzie Friends in Family Cases and A Practical Guide to Working with Litigants in Person and McKenzie Friends in Civil Proceedings.

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