Warning to litigants in person

Most family and divorce solicitors are seriously concerned about what will happen to the court system with effect from next April. Although the next couple of years are likely to see numerous changes in family law and procedure, one of the issues that causes particular concern is the removal of divorce, and almost all family law cases, from the scope of legal aid. Why should that matter? Putting aside issues of access to justice, what will happen to those hundreds of thousands of people who wants to go through a divorce, or have another  issue they want the court to resolve, but who cannot afford their own family law solicitor? There are two simple options;

1. Do nothing – that won’t be an option for many people. If your marriage has broken down, remaining married isn’t an attractive option for many people – and without a court order, you won’t be able to enforce any agreement you may come to with regard to family finances

2. DIY. For many people a DIY divorce or family law case may be the only option. If you bring a case to court without a lawyer, you are described as a litigant in person – and it’s just that category of person that a recent case in the Court of Appeal dealt with.

The case involved a chap called Peter Elliott, and his claims to be a whistle blower. In February this year, he managed to successfully persuade a High Court judge to overturn a judgement made against him back in 2010 – on the grounds that, as a litigant in person without legal advice, he was at a significant disadvantage – allied to the fact that he appears to have some sort of mental health issues.

In the latest case, Court of Appeal Vice President Lord Justice Kay said that the earlier judge had simply gone “too far” in making allowances for Mr Elliott as a litigant in person, adding that Mr Elliott’s lack of legal experience or understanding would not mean that he would be given “extra indulgence”.

This judgement does not mean that any litigant in person will not be given some level of special consideration – but it is a sign that in doing so, courts should not go too far in bending over backwards to aid self represented people.