The perils of the litigious litigant

family court

As all family lawyers well know, some litigants, particularly those acting without the advice and direction of a lawyer, can become quite obsessed with the litigation, often because of a deep sense that they have been treated unjustly (whether or not that is actually the case). The obsession can take various forms, but a common one is where the litigant, armed with a newly acquired (but usually incomplete) knowledge of the law, bombards the court with various applications, seeking to remedy those perceived injustices (and sometimes, let’s be honest, probably just seeking to use the applications as a method to harass the other party).

I may be wrong, but this seemed to me to be the scenario in the recent High Court of Ireland case R.K.A. -v- P.T.P.. The case concerned an application by a husband and father for leave to bring judicial review proceedings, seeking to quash a District Family Court order as well as various other remedies.

Before I go any further I should just explain a couple of things, for the benefit of non-lawyers. Firstly ‘judicial review’, as explained by the Courts and Tribunals Judiciary, is:

“…a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body [such as a court]. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.”

Judicial review may seem like a useful weapon, particularly to the aggrieved litigant in person, but as the Courts and Tribunals Judiciary explains:

“If you want to argue that a decision was incorrect, judicial review may not be best for you. There are alternative remedies, such as appealing against the decision to a higher court.”

There are various types of judicial review orders, and some pretty arcane terminology used to describe them. In particular there is the writ (or order) of certiorari, whereby a higher court quashes the decision of a lower court, and the writ of mandamus, which orders the public body (e.g. a court) to perform an act required by law when it has neglected or refused to do so. Both of these orders are mentioned in the report of R.K.A. -v- P.T.P..

OK, having got that out of the way, a quick look at the case. The husband and the wife were married in 2005, and they have three children. The wife claimed that the marriage had been in difficulty for a number of years, and she left the matrimonial home in February 2016, taking the children with her. She claimed that she had to leave because of the behaviour of the husband. She then commenced judicial separation proceedings in the family court “seeking comprehensive relief arising out of the alleged breakdown of the marriage.”

The husband was aggrieved by various matters, but in particular a non-molestation injunction that the wife obtained against him, which he considered had been made without a fair hearing and had created a ‘wrong presumption’ against him. As I read it, he felt that that presumption had acted against him in subsequent proceedings, for example when the wife was granted interim custody of the children. Other grievances included a claim that the mother’s removal of the children from the matrimonial home without a custody order was unlawful.

The husband sought to remedy these grievances by every legal method available to him. He appealed against various orders, and he also brought this claim for judicial review seeking, amongst other things, to quash the non-molestation order, and a declaration that the mother’s removal of the children from the family home was indeed unlawful.

The judicial review application went before Mr Justice White in the High Court. In relation to the non-molestation order the husband claimed that he had been denied the right to cross-examine the wife at a particular hearing (a point that is very topical over here). However, Mr Justice White said that the husband had been allowed to cross-examine the wife at earlier hearings, and the judge had been entitled to refuse him at that particular hearing, as there had been no change of circumstances since the previous hearing. In any event, he said, the granting of a non-molestation order “does not create any presumption adverse to an Applicant who seeks custody and access to his or her children.”

As to the mother’s removal of the children, he (unsurprisingly) said:

“It is not appropriate for this Court to grant any declaration that the removal of children from the custody of the married natural parent/ Applicant from the rented family home by the Respondent … without any custody order was unlawful. It is not unusual when a relationship breaks down that certain steps are taken before court orders are applied for to regularise what has happened.”

Accordingly, the mother’s removal of the children was not unlawful.

Mr Justice White also found against the husband in respect of his other claims, and therefore the husband’s judicial review application failed. The report is silent as to whether the husband was required to pay the wife’s costs of the application, but obviously this is a risk that all applicants take when they issue such proceedings.

As I said earlier, I may be wrong about the husband’s actions in this case, but the report does very much remind me of cases I have come across previously in which an aggrieved litigant, obsessed by a feeling of injustice, bombards the court (and, of course, the other party) with continuous applications, most of which are completely without merit. The result, of course, is disaster – both in terms of the effect upon the family, especially the children, of all the heavily contested litigation and, as mentioned above, in the costs of the litigation. The moral is clear: think (and preferably take advice) before you litigate!

The full report of R.K.A. -v- P.T.P. can be found here. A word of warning: despite being only 22 paragraphs long, the judgment is a little difficult to follow, partly because of the differences in terminology compared to proceedings in this country. However, the procedures are essentially the same, so the judgment is, I think, completely relevant for us in England and Wales.

Image by Allen Allen under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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5 comments

stitchedup2(Paul) - June 8, 2017 at 11:46pm

Lol your waving a big red cape now John and inviting me to run at it. That mans story could be mine. He had a molestation order I had a Harassment order. (Which i overturned) which ment nothing because in final hearing i was stitched up. I WAS STITCHED UP BY A COWARD OF A SOLICITER AND A COWARD OF A COURT. The magistrates were that cheesed off that I over turned the harassment order that they even retried me for harassment during my final hearing.
So i was tried THREE TIMES FOR HARASSMENT. Trying to see your kids is NOT HARASSMENT OR MOLESTATION. It never has been and it never will be. ITS REDICULOUS !!! – The LAW IS BEEN MISS USED TO FIT A SEXIST DOMESTIC VIOLENCE AGENDA.
Colectively you are a disgrace for taking part in this. The law is been perverted !!
Evidence is against you John. Judges are deliberatly ruling against litigants in person because you are scared anyone can look on google or utube and win cases against legal professionals. Its pathetic… i am embarassed for you.
The reason why litigants in person are a threat is because the law is not been applied proparly in the first place and you all know this very well.
What possible benefit is their for criminalising all these men ?? – for destroying all these familys ??. Its insane….
DURING THIS PROCCESS I HAVE LOST ALL RESPECT FOR LEGAL PROFESSIONALS AND THE LAW. I shall never turn to a solicitor again.
You wonder why moral in the judiciary is so low. Maybe its because you are collectively doing the wrong thing.
You should welcome litigants in person. You should welcome the challenge and show some professional etiquette and god damn respect.
If the law was been implimented proparly you would have nothing to worry about.
But its not is it John ???
Litigants in person are been trashed and stitched up so you can justify work for soliciters. An we call this justice???
I think we need independant observers in court when litigants self represent. To observe fair play. Or even better. A JURY !!
(*Commented edited by the moderators)

stitchedup - June 11, 2017 at 4:00pm

Paul, the system isn’t about justice it’s about self interest and politics. Whilst legal professionals wax lyrical about our justice system and how its a role model and envy the world, the truth is it’s a disaster and is often ridiculed by legal professionals and politicians from other countries. What we have is a system that’s positively designed to fail. The only remarkable thing about it is it’s ability to create something out of nothing. Non mols are just part of the gamesmanship of divorce and separation, no evidence of abuse/violence is needed to secure one. Harassment warnings, we’re told, are served on us for our own protection, and like non-mols, do not imply guilt or evidence of genuine harassment; so why have them? They exist as a tool to create something out of nothing, they require no proof or evidence to secure, yet can lead to criminal convictions if breached and the breach can be something as benign and harmless as talking or texting. So a man has a non mol slapped on him without any evidence of abuse or violence, and is then found in breach of it for talking. He’s convicted for breach of a non mol which is then recorded as a domestic violence conviction even though there has never been any proof of domestic abuse or violence. You really couldn’t make it up!! If this process could be patented it could make somebody very, very rich and
solve all the world’s problems by creating something out of nothing…. Just imagine!! But of course, in this context, creating something out of nothing lines the pockets of lawyers, feeds the feminist dv agenda/mantra, and makes it look like politicians, the MoJ, the DPP etc are tackling a problem that is artificially inflated and exaggerated. The untold damage this does to families is acceptable collateral damage and is a price worth paying for political correctness and pandering to the feminist political agenda/mantra.

stitchedup2(Paul) - June 9, 2017 at 11:39am

Question for you John.
In my final hearing I received a letter before the trial. It said. The trial will be heard based on SUBMISSIONS ONLY there would be not live evidence. I was happy with that. My submission was good. Hers (prepared by soliciter) was awful and directly contradicts other things she had already claimed.
So I brought no live evidence.
Day of the trial. Her soliciter changes his mind. I don’t think it would be fair to hear the trial with no live evidence.
So the TRIAL WAS BASED ON LIVE EVIDENCE.
So he got to interview me with a set of carefully structured ‘leading and grossely miss leading questions’
I pointed this out to the court. He was aloud to persist.
I was given one hour (over lunch) to prepare questions to put to my expartner. An I was not aloud to question her directly.
I pointed out that I am dyslexic and could not formulate the questions in this time.

My question is do you believe this to be a fair and impartial hearing for a litigant in person ?

I don’t. I beleive its quite clear the court tried to undermine my defence by making sure I had no live evidence prepared.

Stitchedup - June 9, 2017 at 5:17pm

“In any event, he said, the granting of a non-molestation order “does not create any presumption adverse to an Applicant who seeks custody and access to his or her children.”” so a non-mol is not evidence of domestic abuse/violence, which we all know anyway. If there was evidence of domestic abuse/violence it would certainly go against him. This, in turn, begs the question why are non-mols considered evidence of domestic violence/abuse in legal aid applications?

Paul - June 11, 2017 at 10:32am

Exactly. The whole reason i took the harassment conviction to appeal was that I knew they would use it as an EXCUSE to block contact. I over turned it. Got it quashed and yet they still made referance to it in my final hearing and it was part of there reasons.
This is not a game men can win. Cat got your tongue John ?

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