CA sounds alarm over injustice risk as it ends up researching law for LiP

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By Legal Futures

11 February 2015

Court of Appeal: not a satisfactory state of affairs

Court of Appeal: not a satisfactory state of affairs

The Court of Appeal highlighted the false economy of the legal aid cuts yesterday after complaining that it had had to research the law on behalf of a litigant in person.

Lord Justice Aikens warned of the risk of courts coming to wrong decisions because of the lack of legal assistance.

The husband in a divorce case was seeking an order to force the police to disclose a witness statement he considered relevant to allegations about his behaviour during the marriage. At first instance the application was rejected, but he appealed.

The appeal court in Lindner v Rawlins [2015] EWCA Civ 61 noted how the husband, representing himself, had cited the Civil Procedure Rules, rather than the Family Procedure Rules, in his submissions. In the end it upheld the ruling of HHJ Atkinson.

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Giving the lead judgment, Lady Justice Black added: “[This] observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis.

“The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.”

Lord Justice Aikens “wholeheartedly” endorsed these comments. He said: “The procedural issue with which this appeal is concerned is technical and unusual. The husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. The wife was neither present nor represented.

“Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file.

“All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time.

“The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.”


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