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19 APR 2013

Evidence, Practice and Procedure: Three points from the funding jungle

David Burrows

Solicitor Advocate


David Burrows - Practice of Family Law: Evidence and Procedure

David Burrows

What follows is not said to bolster any lawyer's union or to bleat about hard times: it is to warn how slender is the thread of the rule of law. Society depends on it being nurtured always. Legal representation at the right place and the right time is essential to that nurture: for the sake of children, their parents and others who need the law to resolve their issues. The present Lord Chancellor has a job to uphold the rule of law. With yet further cuts proposed he merely threatens it and derelicts his post still further.

Three cheers - five, six and more if possible - for Sir Alan Ward (as he now is) - for his comments in Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234. He lamented the lack of legal aid in a bitter litigation struggle, in effect, between former business partners who had run out of funds to litigate. It could so easily have been - and will be - former spouses, or unmarried partners. He sat with Hughes LJ who now is a Supreme Court Justice, and with David Richards J from the Chancery Division (where he sees many of the same type of case). Both fellow judges emphatically endorsed his point, especially as to short-sightedness of savings in legal aid merely being added to a different Ministry of Justice - HMCTS - budget.

Sir Alan said:

[2] What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably - and wholly understandably - manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases... [the whole passage bears reading]. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.

His second point (para [3]) related to mediation and his concern to review the rule in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 and the extent to which a party can be cajoled - compelled even - to attempt mediation. This point and its consequences is fundamental to family litigation.

In JG (a child) (by her children's guardian) v Legal Services Commission and ors (interested parties: Law Society and Secretary of State for Justice) [2013] EWHC 804 (Admin) in a micro - but very important - point Ryder J refused help to a child's parents where they could not pay for an expert's report. The decision is made more difficult to understand (as it was also for the judge), since it is not clear why a report - called for by the professional guardian - was necessary.

In a long explanation of his decision the judge seems to have overlooked:

(1) That he was in effect allowing an appeal against a district judge's costs decision (Senior Courts Act 1981 s 51(1)) in judicial review: the LSC's remedy lay to join in the family proceedings and appeal there, not the Administrative Court.

(2) The history of Access to Justice Act 1999 s 22(4), which derives from a series of earlier legal aid acts not considered by the judge. It was a construction point: s 22(4) was a route of his decision, but did he approach it correctly, given its history?

(3) That a transfer back to the Family Division and costs control in the particular case would have given him a remedy which might have given him a wardship (parens patriae) type answer to help the child - so far as one can tell from the report.

And then for good measure the Lord Chancellor has published the contemptuously entitledTransforming legal aid which proposes further cuts to legal aid, in an already viciously slashed budget. Family lawyers are to feel more cuts (see Chapter 6). He is not a lawyer; but one of his staff should understand the concept of conflict of interests: the concerns of his office for justice, as against his political interest in showing his party faithful his austerity muscles. Does he put his political ambition before the interests of justice?


David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).  

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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