In the recent case of Tufail v Riaz (2013) EWHC 1829 (Fam) Mr Justice Holman highlighted the severe impact the legal aid cuts are already having on the family courts.
This case involved a wife living in Pakistan and a husband living in England.
The wife instructed solicitors to issue a petition for divorce in May 2012. The husband then instructed solicitors who wrote to the court in December 2012 with a ‘divorce certificate’ already issued in Pakistan. They argued that the parties were already divorced in Pakistan and that the English proceedings should be dismissed. In response the wife’s solicitors wrote to the court arguing that the ‘divorce certificate’ was invalid and that the English proceedings should continue.
The court directed that the parties produce further evidence as to the authenticity of the document and listed a further hearing to decide whether or not the divorce certificate in Pakistan had the effect of dissolving the marriage between the parties and, if so, the status of the proceedings in England and Wales.
This was the issue before Mr Justice Holman.
However, by the time of the hearing neither party could afford legal representation. Instead, the husband attended the hearing in person with the assistance of an interpreter. The wife was also acting in person and did not attend as she remained in Pakistan.
This left Mr Justice Holman in the unenviable position of having to make a decision without the assistance of legal representatives or expert evidence, circumstances which he said ‘could hardly be more unsatisfactory.’
In his Judgment Mr Justice Holman commented: -
‘8. In the present case, until recently, I would have expected to have had the assistance of experienced lawyers on each side and almost certainly expert evidence in relation to the proceedings in Pakistan…. As it is, I have no legal representation and no expert evidence of any kind. I do not even have such basic materials as an orderly bundle or the relevant documents…. And still less, any kind of skeleton argument. Instead, I have had to rummage through the admittedly slim court file, supplemented by various documents handed up to me by the respondent husband today and some material sent by the petitioner wife from Pakistan.
9. I shall do my best to reach a fair and just outcome, but I am the first to acknowledge that I am doing little more than “rough justice”.’
Mr Justice Holman found the ‘divorce certificate’ in Pakistan to be authentic. He found that the wife’s case was not that the document was a forgery, but that it was invalid having been obtained through improper procedure. The wife had already disputed the validity of the ‘divorce certificate’ through the Pakistan Courts and a decision was awaited. He took the view that the wife’s argument on this point could only be determined by those knowledgeable and informed about the relevant Pakistan law.
He therefore decided that ‘on the balance of probabilities’ the parties were ‘probably’ already divorced in Pakistan. On this basis he stayed the English proceedings, commenting that this did not cause either party any prejudice as the English proceedings were only stayed, whilst awaiting the outcome of the decision of the Pakistan Courts, rather than dismissed.
When concluding his Judgement he commented:
’57. I record that I began this case at 10:30am this morning and I am now concluding it around 3:30pm. It has, accordingly, effectively occupied the whole of the court day. By sheer good fortune, the other case which had been listed for hearing by me today was vacated yesterday…. If that case had not been vacated, I, and the litigants in that case would have been faced with very considerable difficulties and severe shortage of court time, and probably also additional expenditure to the parties in that case who, as likely as not, would have to have returned on another day’
Sadly, this is a reality more and more people are now facing.
The vast majority of those who cannot afford legal representation are no longer eligible for legal aid, meaning they have no option but to represent themselves in Court.
Understandably litigants in person are not always readily equipped to provide the Court with the ‘orderly bundle’ and ‘skeleton argument’ the Court requires to be able to deal with matters properly and efficiently. This means that each Court hearing can take considerably longer than it should.
The effect of this is being seen on a daily basis in Court’s across the country, with many parties (whether legally represented or a litigant in person) spending hours waiting outside Court for their case to be heard, only to be told that there is insufficient time to deal with their matter and to return another day.
Does this mean that a “rough justice”, either through lack of legal representation or lack of time and resources, is all that we can now hope for from our legal system?
It is hoped that the government’s plans for a unified family court by April 2014 will help to ease the pressure on the court system. However, the effect of these changes remains to be seen.