6 October 2016Print This Post

High Court warning to lawyers over fair treatment of litigants in person

Documents: more than 100 pages given to non-English speaking LiP at door of court

Documents: more than 100 pages given to non-English speaking LiP at door of court

The High Court has issued a warning to lawyers over dumping legal documents on litigants in person (LiPs) at the door of the court.

Though Mr Justice Peter Jackson’s ruling was in the Family Division, it has clear resonance with the civil courts too.

Re B (Litigants In Person: Timely Service of Documents) [2016] EWHC 2365 (Fam) – which was published with the approval of the President of the Family Division – arose from a recent final hearing in a child abduction case. Counsel’s 14-page position statement and four law reports totalling 100 pages were given at the door of the court to the mother, a non-English-speaking LIP.

This is unfortunately not an unusual occurrence, and it calls for a remedy,” said the judge.

He continued: “Where one party is represented and the other is a LIP, the court should normally direct as a matter of course that the practice direction documents under PD27A are to be served on the LiP at least three days before the final hearing, especially where the LiP is not fluent in English.

“The method of service, usually email, should be specified. Where time permits, the court should consider directing that the key documents are served with a translation. In cases where late service on a LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected.”

Peter Jackson J observed that many LiPs, because of their inexperience, were hesitant to complain about matters such as late service. He noted that the “possible unfairness” arising from the imbalance of one party being represented and one not “have been repeatedly stressed” by the family courts.

“It might be added that late service of documents further weakens the position of LIPs by removing any opportunity they may have to seek advice and explanation ahead of the hearing from those who may be more familiar with the system and the language.

In the case before him, the judge said the position statement was of real assistance to the court and, had she had it sooner, could only have helped the mother, even though it was in English.

“As it was, time was wasted before the hearing could begin, with the mother studying the documents with the help of the court-appointed interpreter. That help was kindly provided even though the core function of the interpreter is as an interpreter and not a translator.”

He said the minimum service requirements set out in the Family Procedure Rules “should be adapted in individual cases to protect the rights of LIPs. The need for earlier preparation and service places obligations on advocates and those who instruct them, but that is necessary to prevent the intrinsic unfairness to LIPs that may arise from late service”.

By Neil Rose


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