Numbers of party litigants are on the increase, as are the difficulties that can result, but solutions are not obvious

While party litigants have always been a feature of family cases in the sheriff courts, it is their increasing prevalence in the Court of Session which is bringing the issue to the fore.

A look at some of the reported family cases in recent times marks a discernible trend of unrepresented parties – a mixed bag of the vexatious and the vindicated – sometimes pitting their wits against senior counsel.

Contrasting cases

Falling into the latter category was the dogged father in RAB v MIB [2008] CSIH 52, whose long quest to establish the jurisdiction of Aberdeen Sheriff Court to determine issues relating to the residence of his child was successful on appeal to the Inner House.

Less meritorious was Mr Muirhead, whose appeal to the Inner House (Muirhead v G 2007 FamLR 160) was condemned by Lord Osborne “as a completely sterile exercise”.

Lord Osborne added: “He indulged in presenting numerous legal arguments to this court, many of which were completely misconceived and others of which related to issues which were irrelevant to the resolution of the only true issue in the case. The appellant, at times, seemed to us to have the purpose, not of persuading us to make an order which might have had the effect of bringing about a review of the issue of contact in the light of the circumstances as they now are, but rather of ventilating the arguments which we have described merely by way of a protest at the decision of the sheriff, which he found unpalatable.”

Lord Osborne went on to note that “the time of this court was occupied for a period of three days in considering the present appeal… We feel bound to observe that the present arrangements, under which this court, from time to time, is obliged to hear appeals which possess no arguable merit at all are profoundly unsatisfactory. One obvious consequence of those arrangements is that scarce public resources are wasted and the hearing of the appeals of deserving appellants is delayed. We consider that urgent consideration should forthwith be given by those having responsibility in the matter to the introduction of legislation under which leave to appeal to this court would be required by all appellants. Only by such means can the waste of scarce public resources, such as has occurred in this case, be avoided”.

In other instances the presence of a party litigant can lead to unsatisfactory judgments. With family lawyers eagerly anticipating a decision on a cohabitant’s claim for an award on separation, it was unfortunate that in M v S [2008] CSOH 125 the defender was a party litigant. As Lord Matthews noted, “in approaching this matter I feel at a distinct disadvantage… while I mean no disrespect to the defender it would have been helpful to have had the benefit of submissions from counsel on each side”.

Unsatisfactory outcomes

Janys Scott QC has picked up on the increase in party litigants in recent times. At November’s Family Law Association conference she said: “Party litigants used to be rare. This is no longer the case. There is a repeated theme over the last year of parties representing themselves. The court has an uneasy relationship with litigants in person.” After contrasting the merits of the cases mentioned above she concluded: “There is a challenge here for the courts and for family law practitioners.”

Yet while for counsel and the judiciary the appearance of a party litigant can make for an irritating proof and has the potential to inhibit the development of family law jurisprudence, for practitioners in the sheriff court, dealing with a party litigant on a day-to-day basis can be an exhausting and at times intimidating process. It’s an issue on which practitioners are hesitant to speak out. One solicitor the writer spoke to in the agents’ room of a sheriff court asked not to be identified, but said she had three contact/residence cases ongoing with party litigants.

In one case, which went to proof, the represented party was upset that the party litigant was allowed far more leeway than would have been allowed had he been represented.

Generally, this solicitor’s experience was with fathers who are party litigants seeking contact. She believes they receive less contact and on a less regular basis than they might have managed to negotiate with representation.

“I think the increase in party litigants is partly due to cost, but also I think some fathers probably think that they can do better than their solicitors or don’t need them. I think the format of some child welfare hearings probably leads them to believe that it’s not really that hard. Then they get a shock when it comes to proof. I also think that it can be used as means of frustrating contact if the party litigant is the resident parent.

“There should be no waiving of any of the court rules just because a party is a party litigant. I think the ongoing negotiation involved in most family actions makes it extremely hard to deal with a party litigant on an ongoing basis and it is difficult to negotiate in person.

“What I would like to see would be a curator appointed to all children when one of the parents is a party litigant if matters are truly in dispute.”

Need to be heard

Chair of the Family Law Association Liz Welsh says it is the perception of many members that the number of party litigants in family cases is increasing.

“This will be partly the result of people not qualifying for legal aid and not being able to afford to pay for representation. I do have a great deal of sympathy for people in this situation, when they are of limited means – what do you do if you are served with a writ seeking residence when, for good reason, you believe the child is well settled and a change would be against their best interests? Not defending the case really isn’t an option.

“There are however too many litigants who are not represented because their case is fundamentally without merit, or they have a fixed – but wrong – idea of how to proceed. I am thinking of cases such as Muirhead.”

At the moment the courts have no power to weed out this type of case. While Welsh agrees that any court should be slow to refuse a parent the right to a proper hearing of a claim regarding a child, “we are now in a position where we recognise that there should be some limitations”.

She adds: “A balance has to be struck between the rights of the individual to pursue a case and the impact which unfettered access to the court has for the court system and the consequent harm which can be done to other litigants. This isn’t just a question of using up an excessive amount of court time. I have seen some party litigants who relish the opportunity to cross examine a former partner, and this can be tantamount to abuse”, said Welsh.

Any answers?

Some answers may be found in the Gill Review. With the civil court system creaking under the weight of business, party litigants add to the strain. Anyone who has spent long mornings in an ordinary court as sheriffs explain the intricacies of procedure to party litigants will vouch for the sometimes over-reaching efforts that are made to ensure fairness to unrepresented parties, which often sees them being afforded further opportunities despite deficiencies in their approach to procedure.

The Gill Review has specifically invited responses on the issue, and in reaching a conclusion faces a difficult task in balancing the right to a fair hearing with the need for more expeditious civil courts.

The FLA takes the view that raising the eligibility limits for legal aid would help. They also advocate having specialist family sheriffs and a more inquisitorial approach to allow for proactive case management, which they consider would be of particular help where a party litigant is involved.

Roger Mackenzie is a solicitor in the family law team at Maclay Murray & Spens LLPL


Fathers Need Advice

Anecdotal evidence and cases such as Muirhead and RAB v MIB indicate that party litigants in family cases will commonly be fathers seeking contact.

In a comprehensive response to the questions posed by the Gill Review about designing court procedures to enable litigants to participate without representation, and the contribution of “self-help” services for party litigants, Dr Martin Crapper of Families Need Fathers writes that the organisation’s experience in England has been that acting as a party litigant, particularly with the support of a McKenzie friend, “has given them more ownership of a case and more access to relevant detail than is the case when using a solicitor”.

It is suggested this can be advantageous to the court as it can enable the judge to gain a greater “understanding of the party’s motivations and character”.

He writes that “child law on residence and contact is essentially very simple”, but that “Scottish legal procedures are complex”.

“We believe it would be appropriate to create a more simple protocol for use in party litigant cases, and to expect party litigants to abide by this.”

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