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

Print This Post

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.

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.”


Leave a comment

* Denotes required field

All comments will be moderated before posting. Please see our Terms and Conditions

Legal Futures Blog

New right to paid leave for bereaved parents: A welcome move

Kimberley Manning DAS

This year, like many in recent years, has seen some key changes within the employment law field, with the government, trade unions and lobbyists remaining endlessly engaged in seeking to impose their interpretation of fair balance between employers and their respective workforces. Although consensus on that equilibrium can never really be achieved, sometimes there are pieces of legislative movement which are difficult to argue with regardless of your perspective: This is one of those. Published on 13 October 2017, the Parental Bereavement (Pay and Leave) Bill would provide for the first time a legal right to parents who are employed and have suffered the death of a child, a minimum of two weeks’ leave in which to grieve.

November 20th, 2017