Rules are there for a purpose

For the benefit of non-lawyers I will begin this post with a little explanation. All court proceedings, whether criminal proceedings, civil proceedings or family proceedings are governed by a set of procedure rules. The rules set out the procedures to be followed in the various types of cases that go before the courts, including how proceedings should be commenced and what steps the court and parties should take once they have been commenced. The procedures can be quite complex and, for many lawyers involved in litigation, working out what procedure to follow can take up as much ‘research’ time as the law itself.

But that, of course, is part of the job of the lawyer: to guide their client through the thicket of procedural rules, on the way to (hopefully) a successful conclusion of the case. What, though, about the increasing numbers of litigants who are having to go to court without the benefit of a lawyer? Are they still expected to find their way through that thicket on their own?

The answer to that question was given very clearly by the Court of Appeal last week, in the case Re D (Children).

Re D was a care proceedings case involving six children. Briefly, the four older children made allegations of physical abuse against the parents, in the form of over-chastisement. As a result, the children were removed from the parents and care proceedings were issued. The court found that the ‘threshold criteria’ of ‘significant harm’ had been met, but before the case was concluded the four oldest children ‘voted with their feet’ and returned to live with their parents. Care orders were not therefore made in respect of them, but care and placement (for adoption) orders were still made in respect of the two youngest children.

The parents then sought to challenge the placement orders, on the basis that the four older children had either retracted or watered down the allegations that they had previously made. Legal aid was not available to them and they therefore, initially at least, had no legal representation. Accordingly, they were not aware of the correct procedure to follow, and applied to revoke the first placement order. When the application went before the court the judge re-cast it as an application for permission to appeal against the order. The parents subsequently applied for permission to appeal against the other placement order as well.

I will not go into the details of what followed thereafter, but suffice to say that it did not accord with the procedure governing appeals. For example, the notice that the parents filed with the court did not set out their grounds for the appeal, as it should have done.

Anyhow, the case proceeded and the judge allowed the parents’ appeal. The local authority then appealed against that decision to the Court of Appeal, in part because of the flawed procedure followed by the court below.

The Court of Appeal allowed the local authority’s appeal. Giving the leading judgment Lord Justice McFarlane had this to say about the procedural irregularities:

“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. Ensuring that a litigant in person’s appeal is established in a manner which is compatible with the rules, that the grounds of appeal are accurately drawn to include the points that the court is going to be asked to consider on the permission application and that all parties know what stage in the process the application has reached, are steps that are each likely to support, rather than hinder, the litigant in person in their interaction with the court and the other parties.”

In other words, litigants in person must follow the rules just the same as everyone else. Whilst it may seem a little harsh to expect litigants in person to know the rules (Lord Justice McFarlane said that the rules on appeals were not complicated, but I would beg to differ), the simple fact is that the rules are there for a purpose, which is ultimately to ensure that justice is done. Obviously, that purpose applies just the same irrespective of whether or not a litigant is represented.

All well and good, but this still does not address the issue of just how litigants are to ascertain correct procedures without assistance, when they are incapable of doing so alone. Clearly, the court should ensure that correct procedures are followed, but as we have seen here that does not always happen, and in any event the court cannot do everything for the litigant, such as prepare their grounds of appeal for them. How common is it, in these post-legal aid times, for litigants to fail to get justice because they don’t know the rules?