By Claire Martin, 12th November 2021 (with postscript by Celia Kitzinger added 25th January 2023)
“Litigants in person” (LiPs) is the term used for people who don’t have a lawyer to represent them in court. They conduct legal proceedings on their own behalf.
Given the cost of lawyers and decreasing access to Legal Aid, especially since the implementation of the Government’s Legal Aid reforms in April 2013, litigants in person are now commonplace throughout the court system.
I have seen many cases involving LiPs, but never as many as in the hearing I attended before District Judge McIlwaine at Lincoln Family Court (COP 13339015). There were 8 LiPs – all members of the same family – at this final hearing.
The fact that there were so many parties, and that all but one party (the Office of the Public Guardian) were representing themselves, posed particular challenges to the judge (and to the one lawyer) in this case. In my view, these challenges were dealt with expertly and with grace and humility. The conduct of this hearing shows the Court of Protection at its best.
In this blog I will provide a brief outline of what the case was about and then focus specifically on what I believe was exemplary engagement with litigants in person by the court. Another observer, Clare Fuller, has also blogged about this hearing, with a focus on the substantive issues before the court in the case (relating to Lasting Power of Attorney) here.
This was a hybrid hearing – meaning that some parties were in court and some attended remotely. It was listed for three days. I observed the hearing via Cloud Video Platform on Monday 27th September 2021 and (part of) Tuesday 28th September 2021. Celia Kitzinger attended for all of the third day (Wednesday 29thSeptember 2021) and I have drawn on some of her notes (with attribution) in this blog.
I had also attended the directions hearing on 6th September, so I already had some sense of the issues before the court.
The person at the centre of the case (“Mrs P”) is a 96-year-old woman with a diagnosis of Alzheimer’s disease, now advanced. She had moved to live with her daughter (BR) in February 2014. She was not represented in this case.
The applicant was BR, who has sole Lasting Power of Attorney (ss. 9-14 Mental Capacity Act 2005) for Mrs P, both for Health and Welfare and for Property and Finances. She was a litigant in person.
The other litigants in person were BR’s six siblings (four brothers – AD, MD, CD and DD, two sisters – AJ and HF) and her husband.
BR’s son (KR) was also present in court as a McKenzie Friend, and another son (AR) was present on remote link (also as a McKenzie Friend).
The only represented party was the Office of the Public Guardian (represented by counsel, Alex Cisneros).
Mrs P’s daughter, BR, had first made an application to the Court of Protection in October 2018 for gratuitous care costs for Mrs P (backdated to 2014 and ongoing) and for costs to adapt her property to make it more suitable for Mrs P. There have been several hearings since then.
The issues for the judge to consider at this final hearing were:
- The amount of remuneration for gratuitous care provided by the applicant BR to Mrs P: both the care already given from 2014 until now, and in the future. “Gratuitous care” refers to the unpaid support BR has given to care for her mother, Mrs P. This includes helping her with all activities of day-to-day living.
- Whether to authorise £21,649 from Mrs P’s account to extend the garage at BR’s house to create an additional bedroom for a carer to stay overnight, and to enlarge the existing bathroom area for Mrs P.
- Whether, retrospectively, to approve the £25,490 that BR used to purchase a car using Mrs P’s finances.
- Whether to make some form of order or declaration regarding the contact that Mrs P has with her family.
- Whether to make some form of order or declaration regarding the contact that Mrs P has with her family.
Issues for Litigants in Person (LiPs)
The courts have expressed a great deal of concern about managing increasing numbers of Litigants in Person. The Equal Treatment Bench Book, November 2013 reminds judges about the issues that LiPs face:
Most litigants in person are stressed and worried, operating in an alien environment in what for them is a foreign language. They are trying to grasp concepts of law and procedure about which they may be totally ignorant.
They may well be experiencing feelings of fear, ignorance, frustration, bewilderment and disadvantage, especially if appearing against a represented party. The outcome of the case may have a profound effect and long‐term consequences upon their life.
They may have agonised over whether the case was worth the risk to their health and finances, and therefore feel passionately about their situation.Equal Treatment Bench Book, November 2013
The Equal Treatment Bench Book, November 2013 also provides guidance about the role of the judge when there are LiPs in court.
Role of the judge
Judges must be aware of the feelings and difficulties experienced by litigants in person and be ready and able to help them, especially if a represented party is being oppressive or aggressive.
Maintaining patience and an even‐handed approach is also important where the litigant in person is being oppressive or aggressive towards another party or its representative or towards the court or tribunal. The judge should, however, remain understanding so far as possible as to what might lie behind their behaviour.
Maintaining a balance between assisting and understanding what the litigant in person requires, while protecting their represented opponent against the problems that can be caused by the litigant in person’s lack of legal and procedural knowledge, is the keyEqual Treatment Bench Book, November 2013
Watching District Judge McIlwaine, I saw him put this guidance into practice, and that’s what I’ll address in this blog, as follows:
- Arranging preliminaries to support LiPs in court
- Supporting LiPs with requests for McKenzie Friends and other late applications
- Managing difficulties associated with LiPs heightened emotion
- Recognising and being sensitive to LiPs’ lack of knowledge of the law
- Enabling a LiP to reconsider her role as Finance LPA (and to voluntarily relinquish it)
- Arranging Preliminaries to Support LiPs in Court
We were due to start at 11am (on 27th September 2021) but proceedings did not get underway until nearly an hour later (at 11.53am). This was in large part because the judge was clearly aware of the need to prepare the parties who were litigants in person for participating appropriately in the court process, and he took the time to do that.
At the directions hearing, it had been agreed that Mrs P would not be present at the hearing today, but as it turned out, she was in court (the physical courtroom in Lincoln) with her daughter (the applicant, BR) and her son-in-law (BR’s husband, NAR, also a party). Their son, KR was also present (supporting Mrs P) and had applied to be a party and a witness (more on this later).
Mrs P was talking almost constantly (it was not possible to hear what she was saying, though it did not seem to be connected to what was happening in the courtroom) and it was clear that she was unable to take part in any meaningful way in the proceedings.
DJ McIlwaine asked BR why Mrs P was present. BR said that the Local Authority was meant to be arranging care for Mrs P during the hearing but had not done so. Her grandson agreed to take her out for a walk and the judge asked the court staff to find a room that they could sit in when they came back. Thinking ahead to the next two days of the hearing, BR confirmed that they would not need a room for Mrs P as care could be arranged.
The judge then ensured that everyone attending remotely could hear and see the proceedings.
DJ McIlwaine explicitly referred to the potential difference in experience (for BR and NAR) of being physically present in court, in contrast to all other parties who were attending remotely. He noted that it would be ‘unlike your own home’. He commented on the potential feeling of insecurity in the courtroom and invited BR and her husband to give their evidence from their seats rather than the witness box.
To CD, who was experiencing microphone issues on video-link, the judge asked if others could assist: “[with humour] … have you got a teenager who could sort out your IT problems? I’ll see if the clerk can arrange a telephone line for you.”
I thought that the judge’s attention to the minutiae of the hearing was extremely helpful for all concerned. What was most clear to me, given that no evidence had been heard and no witnesses had been questioned and cross-questioned before lunch, was the meticulousness with which this judge set up the hearing. He ensured everyone’s accessibility, considered late applications and requests for additional witnesses, attended to preliminary points and did all of this in a friendly, warm and supportive manner, whilst maintaining the authority of the court.
It brought to mind the concept of ‘dynamic administration’ in group analysis. Cynthia Rogers describes the importance of this for setting up supervision groups, using the analogy of sailing a boat:
3. Sailing a boat might illustrate what I mean by dynamic administration. A sailor makes continuous minor adjustments, leaning out, tightening a sail, and moving the dagger board. It is not really possible to make these adjustments to order, they need to become intuitive in response to the feel of the boat, the wind and the tide. Pulling a rope in too quickly or too slowly will only make matters worse.
4. Dynamic administration is as important as rigging a boat. I am not sure anyone enjoys the time it takes to rig a boat but with sloppy rigging the boat simply doesn’t respond to the touch and fine control is lost. If you get the rigging right you should be able to sail your supervision group close to the wind or relax and goosing with sails billowing, allowing the momentum of the supervision group to carry you into fascinating territory without anyone falling overboard.
I certainly did not witness any ‘sloppy rigging’ in DJ McIlwaine’s administration of this hearing.
2. Supporting LiPs with requests for McKenzie Friends and other late applications
The applicant’s two sons had made late applications: one (KR, in the courtroom at the start) to be added as witness, party and McKenzie Friend; another (AR – via telephone) to be added as McKenzie Friend. I hadn’t heard of this term before.
The judicial guidance for litigants in person (referred to above) contains helpful information on McKenzie Friends:
In a climate where legal aid is virtually unobtainable and lawyers disproportionately expensive, the McKenzie friend and lay representatives make a significant contribution to access to justice. But reported cases tend to concentrate upon reasons why they should not be allowed rather than circumstances where they may be of assistance to a party and the court. The judge has to identify those situations where such support is beneficial and distinguish circumstances where it should not be allowed.
DJ McIlwaine asked each party for their view on the applications. He said the applications had been made ‘at the eleventh hour’, and that, after hearing all views, he judged that both of BR’s sons could be McKenzie Friends but neither could be added as parties to the case, or as witnesses. Counsel for the OPG had raised the issue that, if KR were to be added as a witness without a witness statement, there would be no opportunity for cross-examination preparation, which would be unfair. A concession was that, if KR could file a witness statement to the court and all parties by 4pm that day, the judge would determine if KR needed to speak at the hearing and would determine this at the time. KR did speak on day three of the hearing.
As such, at this point, the sons, as McKenzie Friends, were classed as observers and would need to be served the Transparency Order (which all observers and parties had received).
AJ, Mrs P’s daughter, requested a further witness to be permitted to attend court, from the Local Authority care home that Mrs P stayed in for a period in 2020. The judge asked why this was essential and AJ suggested that she would shed further light on the problems of contact between Mrs P and the rest of the family. It quickly became clear that the other family members were in significant conflict with BR and her husband. There was a suggestion that BR was preventing contact between the family and Mrs P, and that this witness would attest to that.
DJ McIlwaine probed about the additional relevant information that this witness would provide, asked all other parties if they objected, (none did) and said:
“Justice not only needs to be done, but needs to be seen to be done. My job is to ensure a fair hearing. I will allow parties to obtain a short narrative statement – about what the witness will state – then I will consider whether to allow it.” [Judge’s emphases]
The judge then asked for any further preliminary points. BR had some concerns about the indexing of some statements in the bundle of evidence, and it was directed that they would be checked.
The judge had not been given the witness template (which, I learned, was the order in which witnesses were to be heard). There was lengthy discussion about both of these things and then we broke for lunch, returning at 2.20pm.
What I observed was the judge holding his authority lightly, when possible, to foster an atmosphere where everyone can give of their best under what might be very taxing circumstances. This hearing must have been challenging for the whole family, given the divisions between the siblings, and I noted down that, had I been a member of that family, I would have felt listened to and respected by the judge.
3. Managing difficulties associated with LiPs’ heightened emotion: “Pouring water on the flames”
There were many occasions during the hearing in which family members displayed strong emotions. The judge was adept at handling these.
For example, at the beginning of the third day, Mrs P’s daughter said that she would accede to the request from other family members that if Mrs P were in future to “become bedridden”, she would allow them to visit her home for the purpose of being with their mother. She added that she did not want to meet with them herself. Her sister was very upset to hear this, and started to cry. The judge offered a break.
BR: It’s clear you care deeply about your mother and it wouldn’t be fair to stop you coming, but I can’t allow you anymore to see me. I can’t repair any more. I can’t mend bridges. And I don’t want to.
Judge: (Offers HF 5-minute break – accepted)
When BR explained her plans for future contact arrangements, her brother DD said: “I don’t trust you to keep to an arrangement like that. You’re a divisive influence”. DJ McIlwaine intervened: “There’s not much gained by that sort of discourse in this courtroom. I would like to pour water on the flames and you are pouring petrol on the flames”. 
The issue of why BR wouldn’t (her siblings said) allow them to visit Mrs P at her home, or imposed stringent requirements on them in relation to visiting their mother, came up over and over again, and was often the topic of lengthy rehashing of past events. The judge sometimes cut these off. At one point he said:
“I can see the benefit of a full and frank discussion taking place but, I’m so sorry, I don’t want to be unsympathetic, but I need to get everyone’s evidence before the court.”
One of BR’s brothers (CD) felt that one of his own visits had gone well, and wanted to know whether – and if so why – BR had found it problematic. The exchange – technically, he was cross-questioning BR at this point – went like this:
CD: I visited Mam in her annex for two days, basically a few hours every day, and for me it was fine. We went out to the hairdressers, and to a hotel for a cup of tea, and for me it worked fine. I want to ask [BR]: did you have a problem with it? I don’t think that it interfered with your day.
BR: I was wary. I thought you would report back. I feel some people are coming to see what’s going on and say “she hasn’t got this” or “there’s a step there”. I know she’s not in an ideal location. There are plenty of trip hazards. But I walk around with her from room to room. The feeling I get is that if there was a shoe on the floor you might say, “[BR] left shoes on the floor.
(CD is displaying incredulity – shaking his head, furrowed brow as she talks, indicating that ‘reporting back’ is far from his motive in visiting his Mam)
BR: You’ve signed your name to some horrible things You put your name to that joint statement. There’s more hate in that statement than I knew existed.
Judge: So, I can see that this process means that you are communicating in a way that perhaps you’ve not been able to. But I think [BR] you’ve answered the question. Your issue was that he might report back. You had no problem with the actual visit.
CD: I am taken aback by her reaction.
DD: She’s paranoid.
Judge: Can I ask you not to interject. That is not helpful.
Judge: (to BR) Do you believe she enjoyed the visit?
BR: I believe she would have enjoyed it very much. When I take her out to the garden centre, or shopping, I believe she’s happy.
Judge: If I had the luxury of two or three weeks for this hearing I would give it to you, but I don’t (followed by something like “So please try to ask specific questions and please try to answer them”)
CD: You have a perception that people would just turn up to visit. Appear in your garden. Arrive on your doorstep unannounced.
Judge: What is your question?
CD: Do you think people want to turn up willy-nilly out of the blue and visit Mam?
This vividly illustrates some of the challenges faced by the judge. In these few minutes of ‘cross-questioning’ he assists the process by:
- Intervening at the point at which BR becomes emotional and accuses her brother of having said “horrible things” and shown “hate”, to calm things down and to reformulate the answer to the question (“did you have a problem with it?”). The answer was “no problem with the actual visit”
- When DD speaks out of turn and insults BR (“she’s paranoid”), the judge rebukes him – gently but firmly.
- The judge asks a question of his own which is directly pertinent to the question of Mrs P’s best interests (“Do you believe she enjoyed the visit?”)
- The judge acknowledges the importance for the family of sharing their experience and exchanging views but reorients them to the need – given time constraints – of asking direct questions and answering them.
When CD nonetheless makes what sounds like an accusation rather than a question (it’s a declarative sentence – “You have a perception…” – the judge asks him to rephrase it as a question (and he does).
An exchange of mutual grievances between BR and her sister, AJ, was delicately handled by the judge:
Judge: [following ongoing questioning from AJ about BR’s position in relation to allowing family visits to Mrs P, where BR had confirmed that she would object to any family visits in the proposed new annex]: Could I assist? BR stands by her statements.
AJ: There’s a discrepancy between the answer and the spreadsheets.
BR: I can confirm [getting very upset and angry, airing grievances about family relationships and events]
Judge [intervenes, asking AJ}: What is your question?
AJ: [started to discuss the Power of Attorney and being an alternative PoA herself and taking care of their mother, and BR not agreeing to this]…..
Judge: What’s your question?
AJ: Why didn’t she accept that offer [and continued to describe the situation in some detail].
Judge: I am trying to take the energy out of the dynamic here – hopefully some of those more skilled will comment on whether that’s been achieved. [addressing BR] Why did you not accept that offer?
[BR then went into a lengthy description of exchanges between herself and AJ; AJ started to intervene]
Judge: Excuse me! I appreciate emotions run high [brought the focus back to the question and evidence, referring to an email between the sisters].
BR: Why does AJ [uses full name] feel the necessity to concentrate on my life and feel she has the right to make decisions about my life.
Judge: That is not a helpful question. I appreciate there’s a family dynamic and it’s tragic to see it played out.
As illustrated above, these LiPs were often making statements rather than asking questions of the people they were supposed to be cross-examining, and the judge repeatedly asked “What is your question”. Even sentences with an interrogative format (like “why does XX feel she has the right to make decisions about my life?”) are not actually questions but accusations!
This issue has been documented in the Equal Treatment Bench Book, November 2013:
52. Often litigants in person phrase questions wrongly and some find it hard not to make a statement when they should be cross‐examining. Explain the difference between evidence and submissions, and help them put across a point in question form.
There were many examples of the judge needing to intervene when the LIP was making a statement, rather than asking a question. He did this in several different ways:
- A LIP cross-examining a witness and beginning to make evidential statements, rather than asking a question. The judge assists in the framing of a question.
Judge: Do you have a question? [at other times: What is your question?]
LiP: I do [proceeded to express a view about a report that was wrong in their opinion]
Judge: [intervening] Perhaps I can paraphrase what I think the question is….. [framed the statement as a question for the LiP]
… and later, intervening when a LiP had spent a long time speaking to a witness:
Judge: The question – perhaps we can put it like this: are you satisfied that all sums withdrawn by [BR and NAR] have been accounted for?
- The judge assists a LIP in summarising their thoughts:
Judge: You’re concerned about a scant understanding of the case?
Judge: What you’re saying is – what is the relevance of the purchase of the car that precedes the capacity assessment?
What struck me, repeatedly, throughout the hearing, was the constant balancing act that must have been going through the judge’s mind. He (relentlessly) needed to pay attention to the content of questioning (Was it a question? Was it relevant to the application?), to the feelings and reactions of the LiPs, to gaps in knowledge, to sensitively corralling any derailing of the judicial process and to ensuring that the evidence considered was in the service of reaching a conclusion in the time available to the court.
4. Recognising and being sensitive to LiPs’ lack of knowledge of the law
On “Intellectual range”, judges are advised as follows:
24. Litigants in person come from a variety of social and educational backgrounds. Some may have difficulty with reading, writing and spelling. Judges should:
a. be sensitive to literacy problems and be prepared where possible to offer short adjournments to allow a litigant more time to read or to ask anyone accompanying the litigant to help them to read and understand documents;
b. exercise and be seen to exercise considerable patience when litigants in person demonstrate their scant knowledge of law and procedure;
c. not interrupt, engage in dialogue, indicate a preliminary view or cut short an argument in the same way that they might with a qualified lawyer.
DJ McIlwaine described what “submissions” are:
“We now move on to ‘submissions’, which means that everyone tells me in essence why their case should be preferred and why other parties’ case is not preferred.”
Judge to CD, when he apologises for not being able to “follow all the paperwork”: “I do appreciate it must be very difficult as litigants in person to manage all the paperwork at home.”
When the issue of the respective roles of lasting power of attorney and court appointed deputies was being discussed, both the judge and counsel stepped in to help the applicant understand aspects of law that were unfamiliar to her:
Alex Cisneros (to the OPG representative): Is it right that you don’t ask attorneys to send regular accounts – do you ask deputies and if yes, how often?
Mr H: Yes, I am not sure of the regularity.
Judge (offering explanation): With a deputy the court sets a bond so that, if there are problems, insurers step in. [Clarified with Mr H that there is no bond with an LPA, and further offered explanation to the applicant about deputies and bonds]
After that exchange I have in my notes ‘V v kind and facilitative approach from both’. It wasn’t just what the judge and counsel had said (which was in the service of extending the applicant’s knowledge), it was the way they had said it (with a kind and patient tone of voice, though not patronising at all).
A further exchange, between the applicant and counsel, exemplified ‘considerable patience’. It was regarding what, exactly, the applicant was claiming for gratuitous care:
Alex Cisneros: I am trying to work out how much you’re claiming for and why. … This is perhaps for submissions, the applicant can come up with days she’s claiming for.
Judge: It’s the applicant’s application – the applicant bears the burden of proof. [He then asked the applicant for a spreadsheet by the following morning to be provided to parties and the court].
BR (applicant); I would like to get some sleep tonight.
Judge: Could your husband do those figures? The alternative is … an actual figure can be inserted when we have the information and I can agree it or not. Counsel?
Alex Cisneros: Yes – it’s not a problem. I am trying to be fair to the applicant – normally I’d be saying the case is not proven. It’s because the applicant is a litigant in person.
During the last day, in relation to issues of contact between the wider family and Mrs P, Alex Cisneros noted that the court had ‘no authority to enforce the contact arrangements’ that the family were asking for. He said that the court could not force the applicant to open up her home to the others if she did not want to. However, some agreement between the family seemed possible. Counsel therefore offered to assist the court by drawing up an agreement about how contact could work e.g. Skype one at a time; Face to Face contact arrangements, and what would happen if Mrs P’s health deteriorates. He said that the OPG did not take a view on the issue of contact but offered to draw up a contact document for the family so that everyone was clear what they were agreeing to.
DJ McIlwaine said that this was a “remarkable offer” and “I’m extremely grateful to you”. These examples illustrate the efforts that counsel and the judge made to facilitate LiPs’ involvement in the legal proceedings, despite their lack of experience and knowledge, to secure a truly best interests outcome for Mrs P (and, I think, for the whole family – as far as was possible).
5. Enabling a LiP to reconsider her role as Finance LPA (and to voluntarily relinquish it)
DJ McIlwaine skilfully discussed the issues of concern about BR’s management of Mrs P’s finances and the proposed building works to her home (she was proposing a change of use of a garage to make space for carers to stay over, easier visiting for others, and a bathroom).
The judge (on the second day) asked about quotes for the building works, whether those quotes had been updated, whether BR had undertaken (at the request of the Official Solicitor) an estimated valuation of her home pre- and post-building works (“No”) and whether BR ‘resisted’ being removed from her LPA status for Mrs P’s finance attorney (“I do – I don’t understand what I’ve done wrong”). The judge referred to a large sum of money (around £300k) in one bank account – against the advice of a financial advisor to spread assets. BR explained that she had been unable to touch that money because it was in a foreign country (where Mrs P lived prior to coming to the UK to live with BR) and she did not have authority to move it, though she has now written to the bank in that country to inform them that Mrs P lacks capacity for financial decisions.
Judge: A theme is lack of trust. One way to remove that is to allow a professional deputy to manage your mother’s finances – you can walk away.
BR: Who pays me? On a day-to-day basis how would it be managed? There’s a cost that goes out.
Judge: Have you investigated what a professional deputy does?
BR: No … [then mentioned the internet]
Judge: I’m not trying to trick you. Would it be helpful to you that financial decisions are made by a professional?
Judge: Would it be helpful to have the gratuitous care paid by a professional?
BR: [uncertain] ….. Yes
Judge: Would that reduce the strain on you?
BR: Are you saying remove the power of attorney?
Judge: Parties might agree that the time has come for a professional deputy – I float it – I’ve not decided yet. You want to continue to manage your mother’s affairs?
Judge: But you’ll accept financial advice?
This exchange was interesting to me – what I observed was DJ McIlwaine carefully and systematically assisting BR to think through her role as LPA, the exigencies of that role, the impact on her time and risk of being thought to be managing it poorly. At this point, BR remained of the view that she wished to retain her finance LPA status. I did think that she sounded a little less certain than the day before, however, and wondered whether the fact that the judge said that she could ‘walk away’ from these responsibilities might have felt tempting for her, at this stage in proceedings. The exchange was gently executed, and although it was clear to BR that the judge could decide to revoke the LPA, I thought that the conversation was genuinely aimed at assisting BR to think through her position in relation to this role. I did wonder whether the judge had done some training in Motivational Interviewing which is an approach to help people consider change in their position or behaviour. It is “designed to empower people to change by drawing out their own meaning, importance and capacity for change” (Miller, W.R. & Rollnick, S. (2013) Motivational Interviewing: Helping people to change (3rd Edition). Guilford Press).
On day three, the final day of the hearing, DJ McIlwaine said to BR that it was entirely up to her whether she wanted to rescind the LPA. He wasn’t putting any pressure on her. Before final submissions, the judge said: “If you want to rescind the LPA you can do it at any point today”. This, of course, is different to having an LPA revoked (which means removed from the attorney by law).
At 17.08 on the final day, BR said she relinquished the LPA for Finance for Mrs P.
The judgment for this hearing will be published and we will attach the link to it when it is available.
Guidance for Litigants in Person
There is guidance available for LiPs.
Advice Now’s (2020) “A survival guide to going to court when the other side has a lawyer and you don’t” covers:
•Lawyers and what their role is, including what they can and cannot do.
•When and how to report a concern about a lawyer to their regulator.
•The skills you need to represent yourself so that you can keep calm, focus on the practicalities and come out the other end
The overview of this report in 2013 entitled “The Judicial Working Group on Litigants in Person: Report”, published by the Judiciary of England and Wales, states:
“2.1 In November 2011, the Civil Justice Council produced its helpful and informative report ‘Access to Justice for Litigants in Person’2. The Council’s report rightly emphasises that the judiciary has an important part to play in meeting one of the principal challenges posed by the Legal Aid reforms, namely a substantial increase in the number of litigants in person and the types of proceedings in which they appear. This report is focused on equipping the judiciary to fulfil that role.”
This report is not primarily aimed at LiPs but does set the scene and might be helpful for LiPs who are interested in knowing what is expected of the judiciary in hearings involving LiPS. It sets out recommended measures to assist LiPs, including the role of McKenzie Friends as supporters.
Jess Mant (2018) in “Doing it yourself: Litigants in person in the post-LASPO family court”, in an online magazine called The Justice Gap, comments:
“Despite more than 80% of cases now involving LIPs, there has been no further investment in reforming the court process to adapt to this new reality.”
This comment paints the environment in which LiPs will find themselves in a light that suggests they might struggle to navigate what might feel like a hostile and unintelligible system and to know how to prepare their evidence and skill in cross-examination. For people for whom there are no funds for representation, nor the ability to navigate this system, this could present insurmountable obstacles (Mant mentions that in her project there were “many interviewees [who] were unable to do this as a result of a range of different pre-existing issues like communicative problems, anxiety or learning difficulties.”)
At points throughout the hearing, DJ McIlwaine expressed sympathy for the predicament the whole family was in – bitterness and resentment, accusations of ‘aggressive’ behaviour and the prevention of Mrs P seeing (some of) her children. The judge said that ‘there are dynamics in the family that do not need to be aired in the courtroom’. It was, at times, very hard for the judge to prevent this, and hard to listen to, though I thought the judge did a very calm and professional job of redirecting people when questioning strayed off-track.
My sense, for this family, was that they had not had the opportunity to have a conversation with one another about their various grievances – and they seemed to have an appetite to do so, or at least to air them and have them heard. The court setting is not able to facilitate this in the way they might have needed emotionally, yet I thought DJ McIlwaine offered a textbook illustration of how to, sensitively yet determinedly, conduct a hearing with LIPs – quite a feat with so many LIPs to boot!
I very much hope that this family can find a way to be with their mother in the last years of her life, without being in conflict with one another. I suspect that the outcome of this hearing will assist enormously with this possibility, setting out clearly who is in charge of Mrs P’s finances, what is paid for out of those finances and – most crucially – drawing up a contact agreement to enable everyone to spend time with Mrs P.
Postscript by Celia Kitzinger (25th January 2023)
We were surprised to see this case listed before DJ McIlwaine on 24th January 2023 – and very surprised to discover that this was not a hearing about a new matter, but a formal handing down of judgment from the hearing we’d observed more than a year ago. It turned out that DJ Mcllwaine had been (as he put it) “taken from the pitch due to ill health and subsequently had to have surgery” so he had been unable to write a formal judgment. Instead, he had arranged for a transcript of the hearing to be made and circulated to all parties – and to the newly appointed Deputy managing Mrs P’s finances (and she was also sent the whole court bundle).
The delay in formally handing down the judgment does not seem to have caused problems for any of the parties. The only person who seemed concerned about it was the judge. Family members appeared to be a lot more relaxed with each other than last time I saw them in court, and agreed that their positions were “not that far apart“. They also seemed to be benefiting from the appointment of the Deputy (also in court) who was communicating well with them about Mrs P’s finances (e.g. she was supporting understanding of a spreadsheet they had questions about, and confirmed the existence of a separate pension account in another country when one of the daughters raised it). I picked up from something a family member said that Mrs P is now living in a care home – which must make visiting her much less stressful for family members.
Less positively there was talk of a new COP application to seek judicial determination of matters relating to rent – although this had not yet arrived with the judge. His view about “blasting off down another set of proceedings” was clearly expressed. “If there are, shall we say, burning embers, I’ll deal with them in due course.. but would strongly urge you to see if you can resolve matters between you“. He also recommended mediation.
The judge had circulated the draft judgment well before the hearing (I think in early December) to all the parties. During the hearing he offered each of them in turn the opportunity to address any issues relating to it. In addition to the inevitable typos, there was some concern from the applicant daughter about factual inaccuracies (e.g. relating to joint accounts and whether or not Mrs P is aware of the proceedings) which the judge promised to review and other family members raised questions about what parts of the judgment actually mean (e.g. what does his dismissal of the application for retrospective authorisation of the car purchase mean for who actually owns the car?). Also Lasting Power of Attorney for Health and Welfare had been transferred from one daughter to another, which (after the new Attorney raised it) the judge decided to add to the judgment.
I have asked for the judgment to be made publicly available (ie. published on BAILLI and the National Archives) when it’s ready (or as judges say, when it’s been ‘perfected’) and will link to it from this blog post if my request is successful. There is guidance about when judgments should be published here (it’s a downloadable pdf) by then President of the Family Division Sir James Munby which says: “At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name.” This is still a serious problem, as indicated in a recent report from the ICLR (Incorporated Council of Law Reporting for England and Wales).
This case is now formally concluded, with (it seems to me) as good an outcome as possible under the circumstances.
The judge ended by thanking Alex Cisneros, the sole barrister in this case, for his “exemplary professionalism in what was … well, I’m not aware of any other case involving eight litigants in person” – and addressing the family members he added, “you were trailblazers“. Having watched two of the hearings, I too think Alex Cisneros did an excellent job, especially in supporting the lay participants in the case. So too, of course, did the judge – as Claire Martin bears witness in this blog.
I’m glad I got the opportunity to observe the final hearing and see for myself the positive outcome of the Court of Protection case for this family.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has personally observed more than 380 COP hearings since May 2020.
 Just a note on gaining access to the hearing. Since I knew when the final hearing was going to be, I was able to email the court in advance requesting access. The court staff were extremely helpful in arranging access, asking me to attend 10 minutes prior to the start to iron out any connection problems. Because I’d had trouble using the Cloud Video Platform at the directions hearing, they also sent me written guidance on how to use that remote platform (a link to which is now on the home page of the Open Justice Court of Protection website here – see point 4 under “How to access a hearing”). When I logged on for this final hearing, the court clerk checked (by email) that I could see and hear, and asked me to ‘be a guinea pig’ and test the acoustics and visuals in the courtroom with him, since this was a hybrid hearing, to ensure others would be able to see and hear when they joined. Joining hearings can be very stressful as an observer (and I am guessing as a remote LiP) and I appreciated this dry run.
 This example is taken from Celia Kitzinger’s notes.
Photo by Thyla Jane on Unsplash
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