Dealing with the ever increasing number of Litigants in Person

Cuts to legal aid, increased court fees and the proliferation of ‘information’ available on the internet have all increased the number of litigants in person in  the courts and tribunals of this land over the last few years, and the Employment Tribunal is no exception.

But what is the Tribunals approach and how does it affect the conduct of the case? The starting point, as it always is, is the Overriding Objective contained within Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.  It states: ‘The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable- (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.’

The appellate courts have been grappling with the balance to be struck at first instance between assisting a litigant and loosening impartiality. Some examples follow: In the case of Higgins v Home Office [2015] UKEAT/0296/14/LA, the claimant had submitted her claim form more than 6 years late. She had ticked the box claiming unfair dismissal and within the muddled ET1 form had indicated the compensation that she sought. The claim was rejected because i) it was brought outside of time limits; ii) the remedies sought did not appear to be those the Tribunal can award; and iii) the claimant did not appear to be claiming unfair dismissal. The claimant appealed. The EAT allowed the appeal. The order was a drastic order, having been made without a hearing and submissions. Such orders under Rule 12 in the EAT’s opinion should only be made in the most plain and obvious cases. Any borderline cases, or cases lacking clarity, or where there is a muddle involving a litigant in person, should be disposed of under Rule 27.

In East of England Ambulance Service NHS Trust v Saunders [2015] ICR 293, the Claimant had made a complaint that she had been discriminated against and unfairly dismissed. It had been agreed that a preliminary issue was whether she was, as she claimed, disabled within the meaning of the Equality Act 2010. The ET heard evidence and then retired to discuss their conclusion. At that stage, and without prior reference to the parties, it began to conduct research on the Internet. After questioning the Claimant the next day, the Respondent asked the ET to recuse itself because it had exceeded its role in investigating evidence for itself, which neither party had sought to put before it, and had assumed the truth of that which it had itself uncovered from the Internet. The Respondent also claimed that the judge was biased towards the claimant. The ET refused to recuse itself and the respondent appealed. The EAT allowed the appeal. Stating at paragraph 46, page 305: ‘A degree of care is required by the tribunal in assisting one party, it should be cautious not to cross the line between impartiality (which it must maintain) and acting as an advocate (which it must never do).’

In U v Butler and Wilson [2014] UKEAT/0354/13, the Claimant was, at the time, a litigant in person who suffered a disability in the form of a mental condition. The issue here was that the Claimant had previously failed to comply with various case management orders and then was late attending a hearing. When he did finally arrive at the hearing the Claimant said he was having a psychotic episode and that his bundle was still at the printer’s next door. By this time the EJ had already struck out his claims. The EJ invited him to address her whether she should review that decision. He orally asked for a review which was undertaken by the EJ there and then but she declined to revoke her decision. The claimant appealed on the narrow basis that the EJ had failed to consider whether to adjourn for a short time in order to enable the appellant to recover his lucidity and/or to enable him to obtain, from the printer’s next door, the bundle which, he said, he had brought and upon which, implicitly, he would wish to rely.

The EAT allowed the appeal. The Employment Judge failed properly to exercise her case management powers to adjourn an oral application for a review, of a decision made at a hearing, to permit the appellant the opportunity to reflect on what course he wished to pursue. She should also have explained to him that one option available to him was to make a written application for a review rather than proceed immediately with an oral application.

In Johnson v Manpower Direct (UK) Ltd [2015] UKEAT/0351/14/DXA, the appeallant argued that the tribunal, before whom he had appeared as a litigant in person, had erred in law by failing to take a point which he had not raised himself. HHJ Serota found that the point was neither so obvious nor so significant so as to amount to an error of law. However, and perhaps rather concerningly, stated that where a point was ‘an essential ingredient of the claim’ it may be that the tribunal should offer assistance to the litigant in person.

Just to emphasise the increasing numbers of litigants in person we face as opponents, and to remind us of the competing duties and obligations we are subject to when appearing against unrepresented parties, in June the Bar Council, CILEx and Law Society produced ‘Litigants in Person: new guidance for lawyers’. It is well worth a read.

 

Child witnesses in Family Courts : A worthwhile update

The recent decision in Re R (children) [2015] EWCA Civ 167 is a useful reminder in what circumstances a child should give evidence and the test to be applied.

The facts of this case are noteworthy as this was an appeal by a child [GR], aged 14, arising from the Court refusing to allow her to give evidence in a Public Law case.

The Local Authority issued care proceedings in respect of GR as well as her sister, RR, aged 7. RR had autism and learning difficulties but, in contrast, GR had capacity to instruct her own Solicitor pursuant to the Family Proceedings Rules 16.29 2010.

RR made allegations that her Father had sexually abused her and her oldest sister GR. RR was ABE interviewed and repeated the allegations against her Father. GR was not ABE interviewed. At an earlier hearing GR was granted permission to file a witness statement, which stated that she was not sexually abused by her Father and she sought to give evidence to that effect.

The question for the trial Judge was whether GR should be able to give evidence. There is a culture of reluctance towards children giving evidence in Family proceedings but yet there is no assumption or starting point that children should or should not give evidence.

It must be remembered that there is a legal test to be applied, that the Court has to strike a balance, and that justice must not be forgotten whist at the same time balancing any harm to the welfare of the child.

The correct test and balancing excised to be applied when considering whether a child should give evidence is set out in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12 by Lady Hale at paragraph 24:

When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided”.

Therefore it is clear that the Court must consider two factors. Firstly; “Determination of the truth” and Secondly; “Risk of harm to the child”.

Lady Hale amplified this further in Re W by setting out further elements to consider under those factors.

Determination of the truth: (as per paragraph 25 of Lady Hale’s Judgment)

  • “Issues it has to decide in order properly to determine the case; (sometimes it will be possible to decide the case without making findings on particular allegations)
  • The quality of the evidence;
  • What can be gained by oral evidence from the child;
  • The quality of any ABE interview;
  • The nature of the challenge;
  • The court is unlikely to be helped by generalised accusations of lying or a fishing expedition in which the child is taken slowly through the story yet again in the hope that something will turn up;
  • Focused questions putting forward a different explanation for certain events may help the court to do justice;
  • Age and maturity of the child and the length of time since the events”.

Risk of harm to the child (as per paragraph 26 of Lady Hale’s Judgment)

  • Age and maturity of the child and the length of time since the events which is the risk of harm to the child;
  • Any support the child has or the lack of it;
  • The child’s wishes and feelings about giving evidence; (An unwilling child should rarely if ever be obliged to give evidence)
  • Views of the Guardian and those with parental responsibility.

These are not exhaustive lists but are starting points for the Court and practitioners, which should be considered.  The two factors are not in opposition from each other. They are both sides of the equation. (Paragraph 13)

The error in Re R was that the Judge only considered the first factor (Determination of the truth) and entered into error by not going onto the second factor (considering the risk of harm to the child).

The Local Authority and the Guardian on appeal sought to pursuade the Court that even if the trial Judge did this, it would have been the same result.  Lady Justice King at paragraph 11 reinforced the correct application and considerations, which must be applied:

“It is common ground that the test to be applied is found in Re W (Children)(Abuse:Oral Evidence) [2010] UKSC 12 and can be summarised as follows:

  1. i) The fair balance between Article 6 rights and the Article 8 rights of the perceived victim may mean that in care proceedings a child should not be called to give evidence but that outcome, (ie that a child should not give evidence), is a result of the balancing exercise and not a presumption or even a starting point.[22]
  2. ii) The essential test is whether justice can be done without further questioning of the child [30]

iii) The court weighs two considerations:

  1. a) The advantages that the child giving evidence will bring to the determination of the truth (Limb 1).
  2. b) The damage giving evidence may do to the welfare of this or any other child (Limb 2).  

The argument by the Local Authority and the Guardian did not carry any weight on Appeal. As by not properly considering both factors the trial Judge did not consider important elements relevant to whether GR should give evidence or not.

The trial Judge failed to consider that GR was mature with no specific vulnerabilities and could have given the Court a real insight into the family home. The trial Judge also considered that it was not necessary to form a view about GR’s credibility. It must be remembered, at this point, that GR had capacity to instruct her own solicitor and had filed a statement stating that sexual abuse by her Father did not happen and RR was lying.

Having this in mind it perhaps becomes clear as to why Lady Justice King went a step further towards the end of her Judgment. She considered the evidential position of GR having filed a statement within the proceedings and therefore GR having a “sense of grievance” but also the “injustice” on Father’s part by GR not giving evidence. (At paragraph 23)

It was therefore rightly questioned what would have happened if a finding of sexual abuse was made, contrary to GR’s statement, but the Court denied GR the opportunity to give evidence. This is an issue as to GR’s credibility.

It is simply a reminder but an important one. Once GR had filed a statement, her credibility became an issue in the case.  Lady Justice King reminds us all to “…. stand back and consider the evidential burden of a witness statement under the Family Proceedings Rules…” [Paragraph 24]

Family Proceedings Rules r22.2(1):

Any fact which needs to be proved by the evidence of a witness statement is to be provided:

At the final hearing, by their oral evidence;

Further if a party –

  1. Has served a witness statement; and
  2. Wishes to rely at the final hearing on the evidence of the witness who made the statement that party must call the witness to give evidence unless the Court directs otherwise or the other party puts the statement in as hearsay evidence

It is an obvious point to make but the Court is likely to direct that a child should not give oral evidence but there must be consideration and the proper application of Re W rather than the culture of a presumption that children should not attend to give oral evidence in Family Courts.

Once the Appeal Court properly considered the application of Re W, GR was granted permission to give evidence so long as she sought to do so with the special measures that she required.

This is a worthwhile reminder that a balance needs to be struck with the correct application of the Law when considering whether children should give oral evidence in the Family Courts.

Rachael Parkhouse