“All by myself…” The rules are the same whether you’re represented or not

It is an unfortunate reality that a great number of litigants find themselves, whether by choice or not, before the Family Court without legal representation. The reasons for this are varied and complex, it is usually down to cost but not always. Some choose to represent themselves as a way to further perpetuate abuse, even if the ability to cross-examine the other party is now increasingly unlikely. Sometimes acting in person provides an ideal guise for the furtherance of economic abuse by deliberate non-compliance, an unrelenting approach to communications, and unfettered pleadings etc. The 2024 Resolution report ‘Domestic abuse in financial remedy proceedings’ explores the same and is well worth a read.

The impact of litigants in person upon the Family Court and the other party (if represented) should not be underestimated, in terms of resources, time, and expense. Some litigants in person are of course compliant with court orders and courteous in their approach. Others, sadly, fail to play by the rules. Rules which are there to ensure fairness, for both sides. A small number, as stated above, are deliberately recalcitrant and cause all manner of problems during and sometimes even after proceedings.

In the case of Mainwaring v Bailey [2024] EWHC 2614 (Fam), Ms Justice Henke considered a “hopeless” appeal made by Mr Mainwaring and the cost arguments that followed the failure of the same. The facts of the case are not particularly important. Mr Mainwaring was represented by solicitors and counsel on appeal. Despite this, submissions were made to suggest that Mr Mainwaring was, in fact, akin to a litigant in person. This proposition was advanced with a view to defending Mr Mainwaring’s litigation misconduct (as set out by Henke J at [16]). At [17] of the judgment, Henke J stated as follows: “On behalf of Mr Mainwaring, I am asked to disregard his litigation conduct or have sympathy for it because he was in effect a litigant in person. I have been troubled by that submission because the Appellant has had both solicitor and counsel representing him before me. Both his counsel and his solicitors have claimed costs on the N260 submitted on his behalf which are not dissimilar to the N260 filed on behalf of the Respondent. In those circumstances, I do not consider that he can be properly described as a self-representing party although I do accept that he took some steps himself within the appeal process to save money.”

As to how the Family Court should treat litigants in person, at [18] Henke J stated as follows: “I have reminded myself that the Court of Appeal has held that litigants in person as much as a represented party are required to comply with the procedural rules on appeals. In Re D (Appeal: Procedure: Evidence) [2016] 1 FLR 249 at paragraph 40 McFarlane LJ (as he then was) said:

“The fact that an applicant for permission to appeal is a litigant in person may cause a judge to spend more time explaining the process and the requirements, but that fact is not, and should not be, a reason for relaxing or ignoring the ordinary procedural structure of an appeal or the requirements of the rules. Indeed, as I have suggested, adherence to the rules should be seen as a benefit to all parties, including litigants in person, rather than an impediment”.”

The same is true of litigants in person during proceedings at first instance. Whilst it is not uncommon for the Family Court to assist, to a degree, litigants in person during hearings, particularly when it comes to explaining rules and procedure, to ensure fairness for everyone, those same rules must be applied consistently. This is particularly important if economic abuse or litigation misconduct is being used as a tool of domestic abuse, despite the relationship having ended.

Barton v Wright Hassall LLP [2018] UKSC 12 of course remains the ‘go to’ authority for the proposition that litigants in person should be treated no differently to those who are represented. There are no special rules just because someone does not have a lawyer, as made plain at [18] of that judgment: “… In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings, But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules … The rules do not in any relevant respect distinguish between represented and unrepresented parties … Unless the rules and practice directions are particularly inaccessible or obscure it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”.

When it comes to submissions for costs orders against litigants in person, where being unrepresented is used as a ‘defence’ for litigation misconduct and a flouting of rules, Henke J’s decision in Mainwaring when coupled with Barton is likely to be extremely useful.