Saturday, 29 March 2008

Sample of Letter - Subject Access Request Under the Data Protection Act 1998

This is an applicable request to solicitors, barristers, the courts and any other authority that processes data. You may wish to refer to the Information Commissioner's website for further information. Also the Data Protection Act 1998.

Sample Letter

Your full Address
The Date

Authorities Address

Dear Sir or Madam

[Your full name and address together with any other details to assist in identifying you and the information you require]

Please send me the information which I am entitled to under section 7(1) of the Data Protection Act 1998 [in relation to [give details if it is specific information you require].[Please would you also advise me of the logic involved in any automated decisions taken by you about me pursuant to section 7(1) (d) of the Data ProtectionAct 1998.]

If you need further information from me, or a fee, please let me know as soon as possible. If you do not normally handle these requests for your organization, please pass this letter to your Data Protection Officer or another appropriate officer.

Yours faithfully


Office of Judicial Complaints Releases First Annual Report

The body responsible for investigating complaints about the conduct of the judiciary in England and Wales has published its first annual report.

The Office for Judicial Complaints (OJC) was set up in April 2006, to consider and investigate complaints against judicial office holders. They report to the Lord Chancellor and Lord Chief Justice jointly, under the arrangement established by the Constitutional Reform Act 2005.

Over the period April 2006-March 2007, the OJC received 1674 separate complaints against judicial office holders. Just over half (51%) were related to judicial decisions, which are outside the scope of the OJC – its brief is to consider complaints against judicial conduct. Disciplinary action was taken in 32 cases, following a thorough investigation.

Read the rest

Full Report - Download here.

The Psychiatry of Unusually Persistent Litigants


Dr F B McManus MB BS FRCPsych RAF, Consultant Psychiatrist,
Birmingham, England

This paper was presented at the International Bar Association Conference and quoted by the Lord Chief Justice . This subsequently damaged the view of litigants throughout the courts. He was questioned about Arpad Toth about the research. The Royal College of Psychiatrists wrote on Dr McManus's behalf and stated " He mentioned that it is not an area of ongoing research interest by him, and that he has not researched obsessive litigants himself. He suggests that the key words listed in the paper may prove useful in conducting a literature search should you wish to investigate further"

Scope of Paper

In this paper I beg in by looking at some early history relating to unusually persistent litigants before focusing upon the specific mental health aspects relating to this group of individuals. Some comments on aspects of management are included.


A variety of descriptive terms have been used to describe a group of individuals who are unusually persistent in their litigation. Such terms include querulant litigants, paranoid litigants, litigious paranoia, morbid querulousness and unusually persistent complainants. This group of individuals attracted the attention of some famous names in the early history of psychiatry. Krafft-Ebing wrote in 1886 “Their constantly more voluminous recriminations, requests and denunciations are filled with invectives and insults to officials which attract the attention of the law……they use up their property, insult the courts and disturb public order”. In 1905, Kraepelin described the syndrome of persistent litigation and commented on the style of correspondence of such people. He felt that they wrote their letters like legal documents and often referred to themselves as the plaintiff or defendant. Their written pages were completely covered with writing which extended even to the margins and they frequently underlined words and phrases. Their case was repeated numerous times in different ways.

The problems of such individuals for the legal profession was highlighted in the Vexatious Action Act of 1896 with the first vexatious litigant being found guilty under the Act in 1897. This individual had started 48 legal actions in the preceding 5 yrs and had attempted to sue, amongst others, the Prince of Wales and the Lord Chancellor. It is still a relatively uncommon finding with approximately 6 individuals per year being named as vexatious litigants in the English courts. Historically, such individuals were felt to inhabit the borderland between “sane but obsessed” and “frankly deluded and psychotic”. However, after early writings on the subject, the literature greatly diminished and some modern textbooks of psychiatry make no mention of the topic at all. However, interest may now be reviving in this topic for reasons to be examined later.

A more modern author (Rowlands in 1988) described “a condition in which there is an overvalued idea of having being wronged, that dominates the mental life, and results in behaviour directed to the attainment of justice, and which causes significant problems in the individual’s social and personal life. It usually, but not always, involves petitioning in the courts or other agencies of administration”. He also described in a neat and elegant way “a small group of people who persist in litigation over real or imagined grievances, regardless of cost or consequences”.

I have already mentioned that the psychiatric literature on this topic is relatively sparse. I suspect that this is because it is unusual for such people to be seen by psychiatrists except in very small numbers. Such individuals are highly unlikely to regard themselves as having a psychiatric problem and even if this is suggested to them by others they are not likely to voluntarily seek psychiatric consultation. Even should they go along to seek advice they would probably resist any suggestion that they might require help. Another factor in the relative paucity of literature on the subject was the rise of the anti-psychiatry movement in the 1960’s and 1970’s, largely as a result of the influence of a psychiatrist Thomas Szasz. Szasz became famous for stating his view that psychiatric disorders did not exist. He saw psychiatric diagnoses as a labelling of individuals in a way that meant that psychiatry was serving the interests of societal control rather than any advancement of mental science. Following on in time from this anti-psychiatry movement, there was the development of Equal Opportunities Legislation, the Human Rights Act, the Freedom of Information Act and an increased accountability of public institutions and private companies to the general public. The social climate, particularly in America and Northwest Europe has been described as a “rights culture” or a “culture of complaint” where customers, clients or patients are encouraged by the system and by legislation to pursue any complaint they might have. As a defence against such increased freedom to pursue complaints, it is not surprising that many organisations, wittingly or unwittingly, put many bureaucratic barriers in the way of individuals seeking redress which only served to add fuel to the litigious flames. Before looking at the psychiatry behind morbid querulousness I think it should be acknowledged that there is a whole range of behaviours from that of individuals making a reasonable complaint or initiating litigation right through the spectrum to those individuals who virtually anyone would regard as either being significantly mentally disturbed or else morbidly obsessed with their complaint or litigation. In other words, I do not believe we are looking at an homogenous group of people who can be subsumed under a single label of the “morbidly querulous” – the situation is much more complex than this.

Classification of Associated Mental Health Problems

A variety of psychiatric conditions might explain at least some of the behaviour of the morbidly
querulous. Table 1 lists those conditions in the tenth version of the World Health Organisation’s
International Classification of Diseases (ICD 10) that might underpin morbidly querulant behaviour.

Table 1 Relevant Psychiatric Conditions from ICD 10
Schizophrenia and Delusional Disorders
•Paranoid Schizophrenia
•Persistent Delusional Disorder
•Paranoia Querulans
Neurotic Disorders
•Somatoform Disorders
•Hypochondriacal Disorder
Personality Disorders

It can be seen from the conditions listed in Table 1 that the words “paranoid” or “paranoia” feature in many of them and this requires further examination. However, in order to understand the relevance of the psychiatric diagnoses we first need to look a little more closely at the underlying psychopathology.
Underlying Psychopathology

The most serious mental disorders are called psychoses and these are conditions characterised by delusions, hallucinations and other forms of disordered thinking. A delusion is “a belief, firmly held on inadequate grounds, not affected by rational argument or evidence to the contrary and out of keeping with the individual’s educational, cultural or religious background”. An hallucination is a false perception e.g. hearing voices talking to you which can have no basis in reality. An overvalued idea is “an isolated, preoccupying belief, which comes to dominate a person’s life and actions, often indefinitely. The belief is usually more understandable to others and is less rigidly held to than a delusion and the person may be able to express doubt about its truth”.The boundary between a delusion and an overvalued idea is often unclear but McKenna in 1984 stated that he felt that the querulous paranoid state remains the standard clinical example of an overvalued idea. The word “paranoid” was originally used synonymously with “delusional” though in more recent times it is a description applied to a person who is suspicious, mistrustful and who feels persecuted by others. It is interesting to note that psychoanalytic theory sees paranoid individuals as being,fundamentally, people with low self-esteem who feel weak and powerless in dealing with others but who project their own self self-loathing on to others around them, thus coming to feel that they are disliked and badly treated by other people. The psychodynamic defence of “reaction formation” can lead to individuals with marked feelings of inferiority to develop an external mask of arrogance and self assurance, something often seen in paranoid people.

Psychiatric Syndromes of Relevance.

Of the various conditions listed in Table 1, it is the group of paranoid-related conditions that most authors feel to be the key to morbid querulousness and we will focus on this more carefully now. Munro in 1982 proposed a paranoid spectrum of disorders using a dimensional view of the conditions rather than a categorical one.

The paranoid spectrum is found below at Table 2.

Paranoid Ideation Paranoid Personality
Persistent Delusional
• Paranoia
• Paranoia

It should be noted that Munro did not include Paranoid Ideation in his spectrum but I believe that there is merit in including it for our purposes. As one reads the spectrum from left to right there is an increasing level of severity of disorder and an increasing disintegration of personality and rationality. I will say a little more shortly about paranoid ideation in the general population and so we can first look at Paranoid Personality Disorder.

Table 3 below details the features of Paranoid Personality Disorder

• Excessive sensitivity to setbacks and rebuffs.
• Tendency to bear grudges persistently; a refusal to forgive insults or slights.
• Suspiciousness; tendency to view neutral or friendly actions of others as hostile
• Combative sense of personal rights.
• Recurrent suspicions regarding sexual fidelity of partner.
• Tendency to experience excessive self-importance.
• Pre-occupation with “conspiratorial” explanations of personal and world events.

It is not difficult to see how such a personality could become morbidly querulant. Many observers note that such behaviour begins after a perceived injustice which assumes a special meaning for the individual and goes on to unlock litigious behaviour. Many such individuals will not initially arouse suspicions as they will often be very friendly towards those whom they believe are helping them in their litigation. It is only when their demands become more and more intense and they become less able to be pleased that the individual’s true personality starts to emerge.

Persistent Delusional Disorders

This is a group of disorders in which long-standing delusions constitute the only or the most
conspicuous clinical characteristic. The relative importance of genetic factors, personality
characteristics and life circumstances in their genesis is uncertain and probably variable. Not all delusional disorders are linked to excessive litigation. Some delusions will result in litigious
behaviour while others will not. The condition entitled “Paranoia Querulans” probably represents the archetypical form of delusional disorder linked to excessive litigiousness.

Paranoid Schizophrenia

This is the commonest type of schizophrenia in most parts of the world. The clinical picture is
dominated by relatively stable paranoid delusions but is usually accompanied by hallucinations particularly of the auditory variety. While the nature of the delusions or hallucinations might lead one to predict that the person will become excessively litigious, the individual will often have become so disorganised and so lacking drive and motivation by his illness that he is unlikely to become morbidly querulant.

Paranoid Thinking in the General Population.

How common are paranoid thoughts and ideas in a non-clinical population? Freeman et al in a
2005 study carried out an internet survey of 1200 individuals who completed a 20 item self report paranoid check list. This study found that approximately 1/3rd of the group admitted to paranoid thoughts occurring regularly (at least weekly). These thoughts and feelings included a perception of hostility in others, feelings of being watched and criticised and suspiciousness regarding the motivation and behaviour of other people. An increased level of paranoid thinking was seen in individuals who had an avoidant coping strategy, a negative attitude to emotional expression, submissive behaviour, lower social rank and a feeling of lack of control over their lives. Thus, this survey suggests that there is a significant level of paranoid thinking in the general population which, under certain circumstances, could quite understandably progress to litigious behaviour and perhaps even morbidly querulant behaviour.

Some Demographics

It is quoted that the age of onset of morbidly querulous behaviour is generally between 40 and 60 years of age. The number of males and females indulging in this behaviour is equal. Astrup in 1984 suggested that 10% of such individuals spontaneously recovered but it is felt by many other observers that the condition runs a chronic course with periods of quiescence followed by outbursts of litigation but with a generally poor lifetime prognosis. It is a widely held view that the morbidly querulant are treatment resistant but this is based more on clinical impression rather than on any systematic study. I have already said that it would probably be very difficult to study psychiatrically a cohort of such individuals as they do not view themselves as ill and would not see a psychiatrist.

Management Issues

If the individual has a mental illness then this might be treated but we come back again to the
problem of getting such individuals to view themselves as being mentally ill and persuading them to seek treatment. Personality disorders are traditionally viewed as being very difficult to treat and paranoid personalities are highly unlikely to engage in any psychotherapeutic process.

The morbidly querulant often focus on personal vindication and retribution and this fits badly with court-based litigation which is geared to provide reparation and compensation. Such people are searching for outcomes that court procedures simply cannot deliver.
There are some study findings which suggest those factors which are usually present from the outset of excessively litigious behaviour and which potentially provide an early warning sign but this does not greatly help in suggesting how such disastrous cases can be aborted early.
It has been suggested that litigants might be inducted into the legal process to identify and counter unrealistic goals. There is debate about whether such individuals should have a single point of contact in their litigation or whether a mutually supportive team approach in the relevant legal department would be better. Individuals facing the morbidly querulous need to maintain a real interest and attentiveness to the litigant yet stay relaxed and detached – doing their best not to get drawn into the individual’s more aberrant behaviour. Judgement should be suspended i.e. “I cannot accept your view but I respect it”. Some of the above measures may help but much further study is required into managing this complex problem.

In Defence of the Litigant

In 2005, the Law Chief called all Litigants "paranoid". Mr Arpad Toth disagreed with this comment and proceeded to dissect the Lord Chief' Justice's arguments.

In Defence of the Litigant

Re.: Independent article dated 30th September 2005 entitled “Law Chief hits out at litigants “ who won’t take no for answer”.

The above article, if accurate, is inconsistent with the reality that litigants in person [LIP] have to endure and exhibits a remarkable lack of insight into the LIP condition from both the scientific and legal perspective. It is instructive to read the reports of Prof. Richard Moorhead [Litigants in Person] commissioned by the Dept. of Constitutional Affairs [DCA] published March 2005 and the report of Alvaro Gil-Robles [Commissioner for Human Rights] published 8th June 2005 where it can readily be seen that the statements made in this article are without support. Consequently the reasoning and criticism of LIPs put forward by the newly appointed chief justice is wrong.

Mr. Nicholas Addison Philips, the new chief justice, complains about a number of things including the refusal of LIPs to “happily” accept decisions of judges which, he says, was previously the case and, as a consequence of the growth in international “rights culture” and the cuts to legal aid, a breed of “obsessive” litigant has emerged who refuses to accept British justice, i.e. “obsessive litigants who won’t take no for an answer”. He further complains that this is expensive to the court of appeal both in terms of time and cost. He amplifies his point by saying that some 90% of the 40% of cases brought by LIPs to the court of appeal disclose “no arguable case” or are “wholly without merit”. He also relies upon statements made by one Dr. Frank McManus, a psychiatrist, who apparently claims that the LIPs exhibit “characteristics” which include “high levels of delusion, self-hate, and a need to give meaning to an empty life” and because “they did not accept their conditions nor present a danger to themselves or others, they escaped the attentions of the mental health system”.

It appears that Mr. Philips is suggesting that judges are infallible and, like Caeser’s wife, beyond reproach. Is he really suggesting that judges never mislead or otherwise get things wrong? Is he not aware of his [relatively] recent predecessor, Peter Taylor, and his/his team’s conduct in the Guildford Four case? Have there really been no serious failures by the courts? Is the Birmingham Six case just an urban myth? Perhaps Denning famous pronouncements in the same case never happened? Belmarsh internees anyone?

In order to see whether these complaints by Mr. Philips and the claims made by him and Dr. McManus stand up to scrutiny it is necessary to look at the facts.


Judges are no more than legal tradesmen who have applied for, and have been accepted for, a job as an employee of the DCA [formerly called the Lord Chancellor’s Dept.]. They have not undergone any proper or prolonged training nor sat any examination in their application and acceptance for the job. They have all the foibles and weaknesses of any other member of society including, but not limited to, substance abuse and a predilection for proscribed materials. They bring to each case their own intellectual baggage and prejudices. They are not superhuman or super intelligent and on different days, depending upon their emotional and intellectual state on the day and subject to any media influence that might have been prevalent, will judge a case subject to their own obsessions, paranoias and prejudices.

Nor do they always read all the material that they were given to read. There is incontrovertible evidence that documents provided to courts/judges have not been read yet the judges handed down a decision with an incomplete, or indeed, no understanding of the matters.

Judges are unlikely to have been in the position of having to defend or bring proceedings in their own name [often without any assistance] in the face of contradictory or incomplete or faulty information, intransigence and obstructions by court employees, including judges. They are therefore in no position to appreciate the trials and tribulations faced by LIPs who merely approach the only venue available for resolution to a controversy.

Judges, and their work, are not subject to contemporaneous peer review or any scientific rigour whatsoever and the frequently adjudicate upon issues in which they have no grounding or education. How for instance can a judge who has no medical expertise whatsoever weigh up the competing technical arguments put forward by, say, a battery of doctors? Yet they do with the unfortunate result that they believe that they understood the technical arguments when in fact they haven’t and consequently produce miscarriages of justice.

In a recent Court of Appeal case [Durant v FSA], the judges demonstrated a complete lack of understanding into the workings of computer systems and then based a judgement on their own misconceptions of same.

Nor can it be said that judges are masters of their own trade. Prof. Moorhead writes in his report,

Many of the judges commented on the problems caused by unrepresented litigants being without the requisite legal knowledge to conduct their case. Judges felt that the lack of legal knowledge put themselves into a difficult position as they too would not know the relevant law all of the time, and researching points themselves was not always an option because of a lack of resources within the courts. [emphasis added]


Whether judicial research corrects the problem seems debatable. It is possible that legal points are missed (a judge who, understandably, does not know the law in an area, may not know that a point has been missed) … [emphasis added]

This raises important questions such as;

Should a judge without the requisite legal knowledge judge a case? How is a litigant to know that the judge does not posses the relevant legal knowledge? Should a judge declare his ignorance of the particular law/laws on the case and, if so, how is a litigant, who would naturally assume that the judge is expert or at least knowledgeable in that/those law/laws, to deal with the judge? Why should he, the litigant, accept the judge’s ruling? Is this not a case of the blind leading the blind? Is this not a case of decisions being made on the hoof?

In addition, there is incontrovertible evidence of judges handling evidence recklessly, manufacturing evidence, claiming to have read non-existent documents in the case, inventing versions of facts that neither party to the case has ever put forward, yawning, not paying attention to LIPs, permitting ambush and using legal jargon that only serves to confuse the parties and the judge himself.

Moreover, judges, under the cloak of “judicial independence” are answerable to no one. The use of “judicial independence” has been used to obviate any detailed scrutiny into the judicial process and even serious failures do not result in any action being taken against the judge concerned. This protectionism must be contrasted to other trades and professions where sanctions including deregistration are available. Until very recently there has been no effective mechanism to complain about the conduct of judges. The Lord Chancellor has now introduced a mechanism but even this is circumscribed in such a way that it obviates any criticism about a judge’s professional activities and is arguably neither transparent nor fair but even this system is about to become even less transparent and fair in April 2006 when the chief justice’s office will take over the disciplining of judges.

Judges are frequently criticised for being unfair. In the Belmarsh cases there was clear unfairness which was only [partially] remedied by the House of Lords. In that case the Appeal Court judges were perfectly content to allow the continuing imprisonment and suffering of people who were not charged with any offence whatsoever and ruled that “evidence” obtained by torture can be used in a British court. In so doing those judges brought the judicial process, the judicial office and themselves into disrepute. There was no sanction applied to any of them or at least none made public. At this juncture it is interesting to note that British jurisprudence has been severely criticised by the European Court of Human Rights for its many failures including this case. See for instance the report dated the 8th June 2005 of Mr. Alvaro Gil-Robles Commissioner for Human Rights at paras. 26 and 27. See also the Independent, page 6 Monday, the 6th October 2005 where it is reported that the UK has been found in breach of human rights over 100 times by the ECHR. How is it that British judges permitted those breaches?

Judges are also frequently lampooned for being “out-of-touch” with the ordinary man and of being ignorant of ordinary life and issues. Quotations attributed to those judges indicate that they are divorced from real life. In failing to acquaint themselves with ordinary life and then pontificating on the instant case they brought the judicial process, the judicial office and themselves into disrepute and ridicule. There was no sanction applied to any of them or at least none made public.

Compare and contrast the judge’s condition with that of any other profession. A doctor, for instance, is required to undergo revalidation every five years in order to satisfy his regulatory body of his competence. This is necessary to ensure that doctors are up-to-date with procedures and developments so that any professional failure which may result in an adverse life-altering or life-threatening event be obviated. In addition, doctors are required to train/retrain in any new medical discipline in which they wish to practise for obvious reasons. Would any patient be content to undergo neurosurgery by, say, an untrained osteopath?

The law intrudes into many, if not most, aspects of ordinary life and trade. For there to be effective and informed and consistent decision making in a controversy it is necessary for judges to have specialist training in, or knowledge of, the subject matter concerned. At present there is little, if any, specialist training with the concomitant result that judges adjudicate with an inadequate understanding of the facts, the technicalities or, indeed, the relevant law. Even a Crufts judge is required to be fully conversant with the desirable features/attributes of the breed/breeds before he embarks on a judgement. How can it be that in the courts the essential requirement of being knowledgeable in the matter, or matters, there to be judged this basic requirement is optional?

Judges wield much power and their actions and failures may be just as potent an event to a LIP as a medical failure. Entire lives, livelihoods and families may be destroyed by a careless or negligent action or remark yet there is no overview or supervision or sanction. Doctors, solicitors and barristers are regulated why should judges be treated differently?

Judges are not infallible, if they were, then there would be no need for appellate courts, i.e. Mr. Philips would have no job.

The law

The law is not a science. At best, and being charitable, it is an art and as an art it is subject to subjective interpretation [see above re. prejudices etc.] and therefore there is little in the way of absolutes. For this reason different lawyers have different takes and approaches to the self same issues and why the exact same case would be judged differently by a different person. Indeed, the law recognises that the same facts and law may throw up different interpretations and decisions on both and therefore discourages a case to be tried twice. However, if the same facts and law are capable of being treated and adjudicated differently by different persons then there can be no absolute and it is only right and proper that an adverse or unpalatable decision be tested by the appellate courts. Indeed, the very purpose of the appellate courts is to do just that.

Moreover, it is not unknown for the courts, even at the highest levels, to get matters wrong repeatedly and for them to inflict suffering upon ordinary people for years upon years despite allegedly maintaining the highest [criminal] standards only to realise decades later what was obvious at the outset.

If the law and the rules of court [CPR] was drafted and administered in a way that allowed ordinary people of modest means to present their cases in plain and ordinary language then many of the complaints that Mr Phillips puts forward would be obviated.

In the year 2000, the Woolf reforms were intended to simplify and streamline the legal processes thereby giving the ordinary man effective access to the courts. Unfortunately, the Woolf reforms merely tinkered with minor peripheral matters without addressing the fundamental issues and hurdles faced by LIPs. Examples of peripheral tinkering include – dispensing with the word “plaintiff” and substituting “claimant”. The fact of the matter is that the entire legal system is, and has been for a very long time, in sore need of root and branch reform in order for the common man to have effective access to justice.

The CPR, far from being streamlined and simplified, adds further complications and obstacles that were never there before, e.g. permission to appeal [see Plotnikov and Woolfson below]. Moreover, the language used in law and in the CPR is both archaic and often grammatically wrong thereby rendering them indecipherable to legal tradesmen and the public alike hence the need for interpretation. Because of this indecipherability, the legal trade often, if not usually, misinterprets its own rules, statute and case law. These failures are what contribute to LIPs having to appeal to a supposedly better informed judge in the hope of rectifying errors.

Indeed, the rules of the court are written for the benefit of those who work in the legal trade and this has been commented upon by eminent writers and intellectuals for centuries including Shakespeare, Pope, Swift, Dickens to name but a few. The legal trade has not changed substantively for centuries.


There is a long history of judicial failure and one merely has to look at the Belmarsh cases, the Pinochet case, Guildford Four, Birmingham Six and Kelly Inquiry to name but a few and these are just the very high profile cases. In the Kelly inquiry, Mr Hutton [personally selected by Downing Street] failed to exhibit any fairness or evenhandedness when the parties hostile to Mr Blair sought to put questions to Mr Blair. Mr Hutton, thought it acceptable that Mr Blair should go unchallenged regarding his statements about Dr Kelly. Mr Hutton then produced a decision in which only he and Downing Street could put any faith and matters in that decision have been proved to be incontrovertibly wrong.


Mr Phillips complains about LIPs using the oral renewal of an application for permission to appeal as a “mini-appeal process”. The solution is simple, restore the age old principle of automatic right of appeal. Up until the year 2000, everyone had an automatic right to appeal and this had been the case for centuries. The removal of this right to appeal is what has caused the situation of which Mr Phillips complains. Restoration of this right will make the process more streamlined. Indeed, having to go through the permission process merely adds an extra tier [or tiers] to the judicial process. An LIP, anxious to present his case properly is naturally keen to point out the various failures of the lower court which may not be apparent to an appellate judge sitting in his ivory tower.

Nor is it always true that LIPs are ill informed as to the law or that their cases “have no arguable case” or that they are “without merit”. There is much case law demonstrating the prowess of LIPs studying and creating new principles and case law, see for example MacDonalds v Morris & Steel. In that case the ECHR ruled that the defendants never had a fair trial [as they were denied publicly funded legal representation] which is something that was completely overlooked by the trial judge and the court of appeal. For further evidence one needs look no further than the recent ECHR ruling on the rights of prisoners to vote where the action was formulated and taken through the courts by an ex-prisoner, self-taught in law, who is now regarded as possibly the foremost expert on penal matters so much so that it is said that the Home Office now consults him!

If a LIP should feel that a wrong decision has been tendered and he believes that there has been a failure in the lower court[s] then he should have the right to bring that failure to the attention of the appellate court for a remedy and the appellate court should rejoice that he has so done. It is only by bringing these failures to the appellate court’s attention can the court system as a whole learn from its mistakes.

That a LIP should apply for permission to appeal is not, and cannot be, viewed as “obsessive”. To so say is both pejorative to the LIP and perverts the real meaning of the word which carries with it unfounded and unevidenced connotations of mental illness. It would be far fairer to say that the LIP is determined or, as Prof. Moorhead puts it, persistent and, given the numerous judicial failures mentioned elsewhere in this analysis, that determination cannot be criticised. Nothing here is to say that LIPs are never obsessive but to say that 90% of the 40% of cases brought by LIPs is “without merit” or “unarguable” is an exaggeration. Even a case that is “implausible on paper” should never be dismissed. Has Mr. Philips not read Eady J in Denise Lynn Merelie v NewcastlePrimary Care Trust?

If “obsession” is a sin, then given that the courts should be “obsessive” in their search for truth and justice why is it unacceptable for a LIP to be so?

In any event, at least in the first instance, the numbers of “obsessive” LIPs are not significant. Prof. Moorhead found,

The obsessive litigant …. has a popular and powerful place in the legal imagination. There was a similar, if only slightly less marked, tendency to speculate on a link between such litigants and mental health problems. [emphasis added]


Obsessive/difficult litigants were a very small minority of unrepresented litigants generally. [emphasis added]


During the course of the research, the picture which emerged from both our scrutiny of court files, and the interviews we conducted, was one in which the number of unrepresented litigants in the first instance proceedings who could be categorised as obsessive (or vexatious) was very small. We asked judges, court staff and lawyers how often they encountered unrepresented litigants who they considered to be difficult or even vexatious. District judges, for example, variously described the proportion of such litigants as being:

de minimis

a fraction of a per cent

a tiny proportion, very, very tiny [emphasis added]


The Circuit Judges reported encountering obsessive litigants perhaps two or three times a year. [emphasis added]


It could simply be that the ‘mad, dangerous and stupid’ litigants are what occupied their thoughts because they posed the greatest challenge to their resources and skills, or that they provided better stories, but a notable effect of this tendency was the stereotypical portrayal of unrepresented litigants which in fact was not borne out by a more considered analysis of how often unrepresented litigants become obsessive. [emphasis added]


The characteristics of obsessive litigants are often taken to be the paradigm for unrepresented litigants generally. Making far-fetched or meritless claims, fruitless applications, and indulging in abusive or uncooperative behaviour all occurred in the courts we researched but it was a long way from being the dominant behaviour of unrepresented litigants in the courts we studied. [emphasis added]

If the numbers in the courts of first instance are very small [the numbers averaged between four and six] then the numbers in the Appeal Court is even smaller although, expressed as a percentage, the numbers might appear to be higher.

Mr. Philips comments that in past times LIPs “happily accepted judge’s rulings” but provides no evidence for this statement. That previously LIPs might have been more deferential to DCA employees is not, and cannot be, the same as saying that they “happily accepted…” etc. Could Mr. Philips’ comments be interpreted to indicate that he has a deep underlying inferiority complex who yearns for a time when he and his co-employees were “happily” lauded without question? Could Mr. Philips’ comments indicate a certain arrogance or superciliousness viz. the common man/LIP? Would Mr. Philips be content if these epithets were directed at him?

Over the years society has become better educated and more aware that wisdom is not the exclusive province of DCA employees and certainly does not emanate from beneath a horsehair wig even a full-bottomed one. There is no reason for judges to enjoy a deference not enjoyed by any other member of society. Respect has to be earned everyday and the job title of “judge” does not entitle the current jobholder to any respect or deference beyond that due to any other member of society. The times when ordinary people were required to tug their forelock in obedience have long gone and may those times never return.

As for Mr. Philips’ comments on “rights culture”, what is so alien or objectionable about that? Why should the common man not seek to expand his participation and benefits within society? Is it not the case that many, if not all, the benefits, rights and freedoms currently enjoyed by ordinary people are the products of ordinary people availing themselves of any mechanism, including the courts, to extend those benefits, rights and freedoms to the many rather than the privileged few as was previously the case? Why should this process stop now? We have not yet reached Nirvana or built Jerusalem.

The UK is one of the few developed countries in the world without a bill of rights or other guarantees of freedoms. What rights the ordinary man has is, in part, dictated by judicial comment in case law which varies from time to time and often subject to the sociological and/or political fashion of the day. Whereas this may be acceptable to some in certain situations it may not be acceptable to others. The growth of international “rights culture” in a democratic country and the awareness of same cannot be said to unhealthy. Indeed, it is the awareness of rights that keeps in check the excesses of the authoritarian tendencies of the state. The growth of a “rights culture” cannot be any reason for judges to complain about any burden [perceived or otherwise] on the courts which belong to the people for the resolution of disputes and the protection of their belated hard-won rights.

If Mr Phillips had any experience of what an LIP has to go through, he would realise that any paranoia that might be exhibited by an LIP is usually well founded [Prof. Moorhead provides a number of examples of how the court and its staff fail the litigant]. A case presented by an LIP is frequently, if not usually, ignored. When the identical case is presented by a legal tradesman it is accepted and acted upon. This is not to say that the legal tradesman said anything different or said anything in a different way but that judges pay attention to lawyers more so than they do to LIPs. In short LIPs are frequently treated as second class court users.

Costs to Appeal Court

Mr Philips complains about the cost in time and money that the Court of Appeal has to bear when hearing LIPs. What price justice? Mr Philips should know of the ”overriding principle” in law namely, that the administration of justice is paramount. Justice must not only be done but seen to be done. Judges and other legal tradesmen are required under the “overriding principle” to interpret the law in such a way as to bring about justice. In the case of LIPs this usually does not happen for the reasons mentioned elsewhere in this analysis. Any costs [additional or otherwise] to the Court of Appeal in dealing with LIPs is a matter of finance and political will and should not be used to castigate LIPs who are doing their very best under extremely difficult, not mention, hostile conditions.

Lack of Legal Aid

Mr. Phillips rightly points out that the legal assistance is not nowadays usually available. When the legal aid scheme was introduced in the late 1940s, 98% of the population was eligible for legal assistance. Now, the opposite is true. Access, and in particular, effective access to the courts is enshrined in both common law and statute. However, because of the lack of legal assistance effective access to the courts is denied. What is a LIP to do? It is now the case that unless a party has deep pockets, that party is constrained to present his case in the best way he can in the face of considerable adversity. Mr Phillips should not complain about LIPs, they do not enjoy equality at arms. They are the victims of political and [often] judicial failure and the soaring, not to mention dizzying, costs of legal representation.

Dr. McManus

Regarding statements attributed to Dr Frank McManus, a consultant psychiatrist about LIPs and their “high levels of delusion, self hate and a need to give meaning to an empty life”. These are without any apparent scientific foundation and it must be asked which peer reviewed study/studies does he [and Mr. Philips] rely upon and, further, if they exist, were they accepted by the psychiatric community? Given also that Dr. McManus says that obsessive LIPs “escaped the attention of the mental health system” because they posed no danger to themselves or others, it may be asked how did those LIPs come to his own attention?

Research at the Royal College of Psychiatry has revealed no study into LIPs. Moreover, there is no mention of this condition in the Oxford Textbook of Psychiatry [latest edition]. In this book, the “bible” of psychiatry, the nearest that can be found to this topic is “Querulant delusion” which was first studied by Krafft-Ebbing in 1888. Since then this condition has been abandoned by the psychiatric profession but not, it would appear, by the legal trade which continues to hold it in its “imagination”. The features of “Querulant delusion” have, at best, a tangential relationship to Dr. McManus’ declared features. In any event the condition, if it exists, is circumscribed in the Oxford Textbook as follows;

It is extremely important that this diagnosis is made on clear psychiatric grounds rather than political grounds. [emphasis added]

It must now also be asked if Dr. McManus and Mr Phillips are acquainted with the Royal College of Psychiatry’s Anti Stigma campaign. From this article, it appears not.

Dr. McManus appears to be making statements on matters for which no evidence has been presented. Even if there was a germ of truth in Dr. McManus’s attributed statements, those statements could not be applied to all LIPs as it could be contrary to the basic principles of fairness and psychiatry to stigmatise all LIPs in such a way. This should be known to both Dr. McManus and Mr Phillips. In the USSR, those who refused to accept the “wisdom” of judges were labelled as “paranoid schizophrenics or suffering from other personality disorders”. Might not the same be said of judges who are themselves disgruntled at LIPs’ refusal to “happily” accept their rulings?

Further DCA Study

The DCA commissions studies into the legal process. Amongst those studies was a study written by Plotnikov and Woolfson entitled “Evaluation of the impact of the Reforms in the Court of Appeal” dated March 2003 when Mr. Philips was Master of the Rolls. In the executive summary it is written as follows:

Litigants advised by the Citizens Advice Bureau at the Royal Courts of Justice (CAB at the RCJ) had great difficulty in understanding the appellate routes. The problems were compounded because lawyers, court staff and judges in other parts of the civil justice system also had a poor grasp of jurisdictional issues. [emphasis added]
Most unrepresented litigants found the procedures hard or impossible to understand.
Most judicial interviewees admitted that they were insulated from the problems litigants experience in complying with the procedural aspects of the new rules. Some Lords Justices were aware of problems with the new appellate routes. Only one thought the new routes were simpler than before. [emphasis added]
Lawyers within the CAO were clear that the new rules were inflexible and that the objective of simplifying procedure had not been achieved. Lack of understanding of the rules was common among lower courts and solicitors as well as unrepresented litigants. [emphasis added]
There is a daunting range of information about the appeals process which litigants can consult but not all of it accurately reflects procedure in the Court of Appeal. [emphasis added]
The extension of the requirement for permission to appeal was the most widely welcomed aspect of the reforms among Lords Justices. It was generally acknowledged to be effective at filtering out unmeritorious appeals. [emphasis added]
Some Lords Justices expressed concern about differential treatment of represented and unrepresented litigants in respect of applications for permission to appeal but most felt the practice was justified. [emphasis added]
Lords Justices were generally sceptical about any claim that the new rules had reduced the cost of appellate litigation. [emphasis added]
Appellate practice in the High Court differed in a number of ways from that in the Court of Appeal and this was a potential source of confusion for litigants. [emphasis added]
From this document is can be seen that the present Appeal Court rules benefit the judges and not the court user, including solicitors, who experience confusion. In other words, the law serves those who serve the law.

In addition, even the “judicial interviewees” admitted insularity from the LIPs’ experience and they too were concerned about “differential treatment” of LIPs. Nor is the system cheap to administer.

Given all the problems, can it be right or fair to castigate LIPs? LIPs did not devise the system they are merely victims of it. Would it not be better to restructure and simplify the system and provide proper training to judges, court staff and lawyers alike? Is it right for Mr. Philips and Dr. McManus to shoot from the hip?

In conclusion

If there can be such a thing as a “cowboy” or “rogue” builder, plumber, doctor then why is it so inconceivable that there can be rogues amongst judges?

A judicial oath is no guarantee of day-to-day good behaviour or competence particularly when there is no policeman to ensure same and given the numerous examples of judges failing in their most basic duties to examine and weigh the evidence or apply the principles of fairness or indeed the civil procedure rules (CPR). Why indeed should LIPs take “no” for an answer?

There is more than a germ of truth in what is, or ought to be, the courts motto:-

“Usually Wrong but Never in Doubt”

N.B. It is perfectly possible to substantiate all that is said in this riposte with documentary evidence although somehow it is doubted that the challenge will be taken up.

Office of Legal Complaints Commissioner

The Legal Services Complaints Commissioner's main powers are in the Access to Justice Act 1999 at sections 51 and 52, and Schedule 3 to the Act. The Act as originally passed refers to the Lord Chancellor as the relevant minister. The minister is now the Lord Chancellor and Secretary of State for Justice. [ Helping Consumers]

2. Te text of letters to the Law Society of 6 February 2008 setting out the targets I requested should be included in its 2008/9 complaint-handling Plan.

Friday, 21 March 2008

Alternative Dispute Resolution

Alternative dispute resolution, usually referred to as ADR, is the collective term for the ways that parties can settle civil disputes, with the help of an independent third party and without the need for a formal court hearing.
This section describes how alternative dispute resolution fits into the department for constitutional affairs proportionate dispute resolution strategy and what we are doing to promote it.

Kept A Secret by the Justice Ministry

Kept a secret by the Justice Ministry until now: how the judges ran the Crown Court. Times 19th March 08

An unprecedented report that exposes an inefficient and judge-centred culture in the Crown Court has been obtained by The Times after a three-year battle with officials determined to suppress it.

The report, obtained under . the Freedom of Information Act, highlights inefficiencies arising from the prevailing culture of the time that was based on ensuring that judges were not kept waiting.

It also discloses inflexible sitting patterns; sometimes resulting from judges' unwillingness to sit in an unpopular Crown Court (courts are not named but could include Northampton, Woolwich or Birmingham) and inconsistency of approach, with some judges failing actively to manage cases.· .

Officials at the Ministry of Justice (MoJ) have repeatedly refused to release the draft report, arguing that this would "undermine relations with the judiciary" and resisted its disclosure at every, stage of the appeals process.

But Richard Thomas, the Information Commissioner, has now ruled that the MoJ, the department charged with. running Whitehall compliance on freedom of information, has itself breached the Act. In an embarrassing finding for the MoJ, he says that officials incorrectly withheld the information, as any potential prejudice that would arise was not sufficient to warrant an exemption .from disclosure .

The inquiry into the listing and .management of cases was carried out by three government inspectorates (those on the Crown Prosecution Service, the magistrates’ courts service and on the police) in 2003 - a time of heightened sensitivity in relations between judges and after the proposed abolition of the office of Lord· Chancellor.

As a result, the report remained under wraps receiving only a passing. mention in a subsequent annual magistrates’ courts’ service inspectorate report . Why? Judges would have been concerned - . particularly at the time of the research - that any inquiry into listening trials, which is jealously guarded as a judicial function, was another encroachment on their independence. Publishing a report on the inquiry findings would not have then been welcome, particularly as the report calls for a review of listing practice in the Crown Court, although it does accept . that this is a complex task because of the high proportion of not-guilty pleas (66 percent of defendants at that time). What the inspectors found was that listing practice varied "considerably from court to court" and the differences arose not just from varying workloads but from factors such as the views of the resident judge on how listings should be done. “Until recently there was a listing culture aimed at achieving timeless targets and keeping judges busy in court.

But while timeliness will remain important, it can “no longer be the prime focus for listing", the report says. Instead, there is now "an over-arching target to reduce ineffective trials” and more emphasis on improving victim and witness satisfaction.

The inspectors also urge "greater flexibility" over the sitting day. “Time estimates for trials are often inaccurate and greater attention should be paid to the accuracy of estimates when setting cases down for trial.

Then there was the problem of moving judges. The inspectors heard that a newly appointed judge might agree to sit at an unpopular court on condition that he or she will be moved to a “more congenial” court after a couple of years. Some candidates who applied to be judges “refuse appointment until they can have the itinerary they wish.” Nor could judges be compelled to change their itinerary to meet court needs, they say.

A further difficulty was the shortage of judges qualified to take certain kinds of case, . such as child abuse, rape or murder, for which special training is needed; and of recorders prepared to sit for longer than a week -presumably because they did not want to spare more time from their practices. As .a result, trials could be delayed or courts left empty .

It says that the role of the resident judge in running listing is key, but that role is not defined and there is no "competence framework" to assess the judge given this job, nor is it clear to what extent the resident judge can manage fellow judges. Yet the ·inspectors accept that running the courts efficiently is made all the harder because of the "long-standing problem" of prisoners not being delivered to court on time. . Other failings include a . "culture of late preparation at the Bar" and the high percentage of trials that fail to go ahead because witnesses do not attend or defendants plead guilty at the last minute.

So what do the inspectors conclude? The report calls for a complete review of listing practice in the Crown Court. The report's findings are now largely historic. In releasing it, the MoJ emphasises that much of it has been overtaken by a series of reforms to make the Crown Court more efficient and meet any criticisms. But as an object lesson in the delicate constitutional relationship between judges and the executive, it remains as relevant now as then.


Thursday, 13 March 2008

Public Law Project Leaflets on Public Law

The Public Law Project has an excellent website.


1. How can public law help me? Download here.

2. What is Judicial Review? Download here.

3. Short Guide to Grounds for Judicial Review. Download here.

4. Remedies in Judicial Review. Download here.

5. A Guide to Making a Formal Complaint. Download here.

6. Complaints Procedure for particular public bodies. Download here.

7. Making a Complaint to the Ombudsman.

Taking your case to the European Court of Human Rights ECHR

This is from Liberty Guide to Human Rights.

Even though the HRA has now come into force in the UK it is still possible to make an application to the ECHR.

There are three key requirements that you must meet:

1. You must be a victim of a violation of one or more of the articles of the Convention. Generally, this means you must be directly affected by a breach of the Convention. In some cases it will be enough to show you are likely to be affected by a breach or that you belong to a group of people, some of whom are likely to be affected. For example, gay men were permitted to challenge laws that criminalized gay sex even though it was unlikely that the individual applicants would ever be prosecuted because the laws were rarely enforced.

2. Before you make an application to the ECHR you must pursue any proceedings that you could take in the UK that are capable of providing you with an adequate remedy for the breach of your Convention rights. Now that the HRA is in force this will generally mean that you will have to take proceedings in the UK under the HRA. This may not be necessary, however, where it is clear that the best you could hope to achieve from taking proceedings under the HRA is a declaration of incompatibility.

3. You must make your application to the ECHR within six months of the conclusion of any court proceedings that you have taken in the UK that could have provided you with a remedy or, if there were no proceedings that it was reasonable to expect you to take, within six months of the event which gives rise to your application. When you make an application to the ECHR you will be asked to complete one of the ECHR’s application forms. However, it is not necessary to fill out one of these forms to meet the six month rule. All you need to do is to get a letter to the court within the six months setting out: 1. Your details (name, address and nationality). 2. The country against which you are making your application. 3. The facts that have given rise to your application. 4. The article or articles of the Convention that you say have been breached.

You should send your letter to:
The Registrar European Court of Human Rights Council of Europe
F-67075 Strasbourg Cedex
Fax: 00 33 3 88 41 27 30

When it has received your letter the ECHR will send you one of its application forms to complete. If there is not enough space on the form you can set out your case in a longer document which you attach to the form. It is important that you submit your completed application form within any deadline set by the ECHR or, if no deadline is set, within a few weeks of receiving it. If you do not submit the form speedily you run the risk that the ECHR will decide that you have not met the six month deadline. If you cannot meet any deadline that is set you should contact the ECHR and try to agree an extended deadline.

Once the ECHR has acknowledged receipt of your application form it may be some time (months if not years) before you hear anything further. At this stage the ECHR may rule your application inadmissible. The ECHR will not give reasons and there is no right of appeal. If your application is ruled inadmissible you will not be able to proceed with it. If it is not ruled inadmissible at this stage, your application will be allocated to one of the ECHR’s four sections. A panel of seven judges from that section will deal with the case. This panel will always include the judge appointed by the United Kingdom. Very significant cases may be dealt with by the ECHR’s Grand Chamber.

These cases are considered by a panel of seventeen judges. A case could be transferred to the Grand Chamber at any stage in the proceedings. Your application will also be communicated to the Government at this stage, that is, the Government will be informed that you have made an application and will be invited to respond. You will be given an opportunity to respond to the Government’s observations and there may be further exchanges of written representations. The ECHR will then decide whether your application is admissible. It can rule your application inadmissible if you have failed to meet one of the three requirements set out above or if the ECHR considers that it is ‘manifestly ill-founded’, in other words, that is not arguable. If the ECHR finds your application inadmissible at this stage it will give reasons, but there is no right of appeal. If the ECHR finds your application admissible it will then go on to decide whether there has been a breach of the Convention.

The ECHR usually refers to this as considering the merits of the application. At this point you have the right to put in a claim for compensation. The ECHR calls this ‘just satisfaction’. It should include a claim for legal expenses if you have incurred any. Your claim for just satisfaction should be sent to the ECHR within two months of the ECHR finding your application admissible. Both sides may make further representations before the ECHR decides on the merits of the application. When the ECHR has made its decision on the merits of your application, you will be notified of the date on which its judgment will be made public. The judgment will be published on the ECHR’s website on that day.

If the ECHR finds that there has been a breach of your rights it may award you compensation although it does not always do so on the basis that its finding that there has been a breach of your rights is enough. Once a section of the ECHR has made a final decision on the merits of an application, either party, the Government or the Applicant, can ask to have the application referred to the Grand Chamber. This is the only form of appeal that the ECHR’s rules allow for. The Grand Chamber only rarely agrees to a referral. There is no appeal from a final decision made by the Grand Chamber.


The ECHR deals with most cases without holding a hearing; it reaches its decisions on the basis of written representations made by the parties. When the ECHR does decide to hold a hearing this will usually take place before the ECHR has decided on the admissibility of the application, although it may also hold a hearing after an application has been found admissible if it has not already held one. Legal representationAlthough you can make an application to the ECHR yourself, it would be wise to get a lawyer experienced in ECHR proceedings to represent you. Most cases are not communicated to the Government (i.e. they are ruled inadmissible at an early stage) and having a lawyer present your arguments for you may help you get over this hurdle. If the ECHR decides to hold a hearing after it has found your application admissible, the ECHR rules require you to be represented by a lawyer at that hearing unless the ECHR allows otherwise.

Legal Aid

The ECHR has a system of legal aid although the payments which a lawyer receives under the scheme are very low. You can apply for legal aid once your application has been communicated to the Government. It is particularly useful to have legal aid if the ECHR holds a hearing on your case, as legal aid will pay the cost of your and your lawyer’s trip to Strasbourg. Eligibility for legal aid will depend on the Legal Services Commission accepting that you would be eligible for legal aid in this country. If you are not eligible for legal aid, your lawyer may agree to represent you under a conditional fee agreement, that is, on the basis that they will only get paid if you win your case and get your legal costs paid by the Government. However, as very few applications to the ECHR are successful, your lawyer may be reluctant to take this risk. If you lose your case there is no possibility of you being ordered to pay the Government’s legal costs.

Taking Your case to the European Court of Human Rights

This is an excellent section written by UK Mens Movement.

Information on taking your case to ECHR, Strasbourg


The European Convention on Human Rights has been agreed by the United Kingdom Government, and is upheld by the European Court of Human Rights in Strasbourg.
But there will be many members, and others, whose rights may have been violated by the Government. We refer primarily, and give examples from, matrimonial and family law, although there will be other areas in which men are affected.

Information is available online at European Court of Human Rights website. They have a good internal search engine to assist with finding cases similar to your own, identified by topic or by Article number.

Hardcopies of the Convention, and other documents, including case decisions etc., may be obtained from :

European Court of Human Rights
Council of Europe
670756 Strasbourg Cedex

tel : 00 33 88 41 20 18
fax : 00 33 88 41 27 92
00 33 88 41 27 30

You should ask for a copy of the following :

the Convention
the Rules of Court
application forms (3 copies are useful : 1 for your draft, 2 for your submission, and 3 a copy for your file) with accompanying notes
booklet on making an application.

Ask for at least one copy, preferably a few for other member's use, and for your own legal adviser whether that is a solicitor/barrister or not.

The Convention consists of a number of Articles, with additional Articles in the supplementary Protocols. The UK has ratified the Convention and Protocol No. 1 only. Listed below are those Articles which you will find of most interest.

You have to show that you have exhausted your domestic remedies. This may be taken to imply you should take your case up through the courts to the House of Lords, however if you can make argument that this would not address the violation, then you don't need to do this. Also, an on-going situation, for which no UK laws are available to remedy the violation, would also imply that you don't need to go up to the House of Lords.

You are asked to apply within 6 months of a decision by a domestic court - but note that in cases for which no UK laws are available, and in on-going situations, the 6 month limit does not apply.
The Court will ask you to write to them first, with brief information about your case. If they think that it is not obviously ill-founded, and that you are within the time limit, they can send you an Application form, which is usually supplemented with other documents. You will find a word processor invaluable, in not necessary, for this.

Don't be put off by the secretaries i.e. the administrative staff handling your case - they will try to put you off, and in fact have gone to underhand lengths to obstruct applications. You want a Judge to see your application.

If you get past the 'rapporteaur' stage, you can claim legal aid from Strasbourg. You won't get it in the UK, as the UK is your adversary. The Rules of Court (#91 - #96) give the regulations for this and explain that you are to complete a declaration on your income and assets, but no limits are given, simply that it is available if "the applicant has insufficient means to meet all or part of the costs entailed".

If the Court initially finds in your favour, it has the option to ask each party (yourself and the UK Government), to attempt to reach a 'friendly settlement'. This would imply that some negotiations in the UK will take place, although this may be in the form of a court hearing to look into the previous handling of the case. If this occurs, remember that you are essentially suing the UK government for human rights abuses, and that any settlement must be friendly to yourself not the government.

Most of the proceedings are done by post. They may culminate in a hearing in Strasbourg. However it is possible to complete a case without a hearing at all, and in fact Norman Scarth won a case without having to attend a hearing. Legal aid can cover the costs of attending a hearing.
The Court has 'secretaries' who are equivalent to the 'clerks of the court' in the UK. These secretaries have a brief to prevent cases reaching the judges. When they tell you that your case 'seems to have little prospect of success' or use other such statement, ignore this, and ask for it to be put forward and registered as a formal case with a case number. Be very firm with them. Norman Scarth had letters from the secretaries telling him that his case had little chance. He later won his case without even a hearing.
Please note that all domestic remedies have to be exhausted eg the Human Rights Act 1998.

Scarth v UK Application no. 33745/96

Known for his flaboyant personality and his braveheart, Norman Scarth took the UK to the European Courts of Human Rights some years ago and won.

Norman Scarth had a hearing in a civil contractual case in which the public and press were excluded, without good reason for this exclusion. The UK government accepted the violation of Article 6, as it should have done. It is more than regretable that the government attempts to defend so many applications.

This case will limit the number of occasions in which judges may attempt to prevent the public knowing what is going on in our courts.

Mclibel Litigants

Infamous LIPs Helen Steel and Dave Morris in the McLibel Trial.

Wikipaedia entry.

McLibel Pair Win just to show that determination wins the day.

Interesting Video. Click on the Mclibel link here.

Brennan v Natwest

This BBC article is an interesting one concerning a LIP against Natwest.

"At times Judge Peter Simpson took a critical view of the fact that Mr Brennan was representing himself, a so-called "litigant in person".
"I do not accept you are an ordinary litigant in person "Judge Peter Simpson
He upbraided Mr Brennan for failing to submit full and proper documentation, and accused him of trying to plead his case by instalments.
"I do not accept you are an ordinary litigant in person," the judge said sternly, referring to the fact that Mr Brennan was a recently qualified lawyer - albeit specialising in another area entirely, planning law. Speaking outside the court after the third day of argument, Mr Brennan conceded he had had a hard time before the judge.
"It's fair to say it was an uphill struggle," he said.

Litigant In Person Survey

"Many people choose to represent themselves in court as a Litigant In Person (LIP). Either party has a right to do this in a family court (you don’t need a solicitor if you don’t want one).
You also have the right to ask fro the assistance of a friend (called a McKenzie friend).
If you represented yourself, how did you get on?"

UK Men's Aid on McKenzie Friend

Men's Aid lists as follows

"The Court of Appeal recently made a landmark decision which will be welcomed by all who act in person - namely that being accompanied by a friend in court is an absolute right, and is not at the discretion of the court. It was also ruled that denial of this right is unfair and strikes at the very root of justice. These rulings vindicate our stance on the matter, and we are grateful to the National Council for Civil Liberties (now Liberty) for taking up the issues involved.The term 'McKenzie friend' relates to the case of McKenzie v McKenzie - a divorce action where the judge had mistakenly debarred the "friend" of a litigant. The matter went to the Court of Appeal and is reported in [1970] 3 WLR 472, upholding the ruling of Lord Tenterden in Collier v Hicks [7 June 1831] that:

"Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, may give advice ..."

The Vexing Issue - Spelling Trouble Ahead

This is an interesting newsletter by Henmans.

"Many litigants may be forgiven for their approach to what is unfamiliar territory. Claims may involve substantial issues of lawor fact, particularly those brought against professionals. However, without a focused and rational approach, both lawyers and the courts alike can quickly lose patience. There is, though, a unique class of litigants, whose behaviour can be defined as vexatious and who are a genuine burden on the court's time and resources"

Download the newsletter from here.

Guidance from the President's Office in Mckenzie Friends

Guidance from the President’s Office- McKenzie Friends

1. Where proceedings are held in open court, it is clear from the principles set
out in Court of Appeal decisions1 that a litigant who is not legally represented
has the right to have reasonable assistance from a layperson, sometimes
called a McKenzie Friend (“MF”).

2. A litigant in person wishing to have the help of a MF should be allowed to do
so unless the judge is satisfied that fairness and the interests of justice do not
so require. The presumption in favour of permitting a MF is a strong one.2

3. A litigant in person should inform the court at the outset of a hearing that he
intends to exercise his right to a MF. He should also indicate who his MF will

4. The court may refuse to allow a MF to act or continue to act in that capacity
where the judge forms the view that the assistance he has given, or may give,
impedes the efficient administration of justice. However, the court should also
consider whether a firm and unequivocal warning to the litigant and/or MF
might suffice in the first instance.

5. If a judge decides in the exercise of his or her discretion to refuse to allow a
MF to assist the litigant in person he should give the litigant reasons for his
refusal. The litigant may appeal that refusal, but the MF has no standing to
appeal such a refusal.
6. What a McKenzie Friend May Do6
• Provide moral support for the litigant
• Take notes
• Help with case papers
• Quietly give advice on:
o points of law or procedure;
o issues that the litigant may wish to raise in court;
o questions the litigant may wish to ask witnesses.

1 McKenzie v McKenzie [1970] 3 All ER 1034, R v Leicester City Justices ex parte Barrow & ors
[1991] 3 All ER 935, R v Bow County Court, ex parte Pelling [1999] 4 All ER 751. See also Collier vHicks (1831) 2 B & Ad 669.
2 Re H (Minors)(Chambers Proceedings: McKenzie Friend) [1997] 3 FCR 618 (CA),
3 Ex Parte Barrow
4 Ex parte Barrow.
5 Ex parte Pelling.What a McKenzie Friend May Not Do
• A MF has no right to act on behalf of a litigant in person. It is the right of thelitigant to use the assistance of a MF if he so requires.

• A MF is not entitled to address the court, nor examine any witnesses. If he
does so he becomes an advocate and requires the grant of a right of

• A MF may not attend a closed court unless the litigant has received
permission from the court for the MF to do so at the start of a hearing.

• A MF may not act as the agent of the litigant in relation to the proceedings nor
manage the litigant’s case outside of court, for example, by signing court

Rights of Audience

• Sections 27 & 28 of the Courts and Legal Services Act 1990 govern
exhaustively rights of audience and the right to conduct litigation. They
provide the court with a discretionary power to grant lay individuals such

• A court may grant an unqualified person a right of audience in exceptional
circumstances only and only after careful consideration.10 The litigant must
apply at the outset of a hearing if he wishes the MF to be granted a right of
audience or the right to conduct the litigation.

Personal Support Unit & Citizens’ Advice Bureau

• Litigants in person should also be aware of the services provided by local
Personal Support Units and Citizens’ Advice Bureaux. The PSU at the Royal
Courts of Justice in London can be contacted on 020 7947 7701, by email at or at the enquiry desk. The CAB at the Royal Courts of
Justice in London can be contacted on 020 7947 6880 or at the enquiry desk.
6 McKenzie v McKenzie
7 Ex parte Barrow, ex parte Pelling.
8 See “Rights of Audience” below.
9 Re G (A Minor) (Chambers Hearing: Assistance) (1991) Note [1999] 1 WLR 1828, Re H
(Minors)(Chambers Proceedings: McKenzie Friend) [1997] 3 FCR 618 (CA), ex parte Pelling.
10 D v S (Rights of Audience) [1997] 1 F.L.R. 724 (CA), Milne v Kennedy & Others (11 February 1999)
(TLR) (CA). Paragon Finance PLC v Noueiri (Practice Note) [2001] 1 WLR 2357 (CA).
11 Clarkson v Gilbert [2000] 2 FLR 839 (CA).

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In Parliament

Vera Baird (Parliamentary Under-Secretary, Department for Constitutional Affairs) Hansard source

"The award of costs is a matter for the judge in the light of the circumstances of a particular case. Under the current rules of court, litigants in person can be awarded costs for the work done in connection with the case of £9.25 per hour. If, however he can prove a higher financial loss for that work he can claim that higher figure subject to an absolute cap on the amount recoverable of two thirds of the amount that would have been allowed if the litigant were legally represented. He can also claim his disbursements. The flexibility of the current system ensures that litigants are fairly compensated for the work carried out. The Government have no plans to review the current rates"


Note: This file does not form part of the LCD or CS sites. The files on those sites are the only official versions of the CPRs and related material. Please also note that the cross-references are not claimed to be comprehensive.


(a) A person is a "litigant in person" during any stage of
proceedings in court in which he or she is not represented by a solicitor or firm of solicitors. For this purpose the term "litigant in person" may include a company or other corporation, a barrister, a solicitor, a solicitor's employee or other authorised litigator who is acting for himself. However, the term does not include a solicitor who, instead of acting for himself, is represented in proceedings by his firm or by himself in his firm's name (CPD 52.5).

(b) Litigants in person have rights of audience in all detailed assessment proceedings. As to their entitlement to have a MacKenzie Friend present, see Section 1 para 1.2, above.
(c) The
costs recoverable by parties in respect of periods when they are or were litigants in person are governed by the Litigants in Person ( Costs and Expenses) Act 1975 and by CPR 48.6. This section of the Guide is intend to help parties understand the position. Reference must be made to the Act and the CPR if there is any doubt.
(d) The staff of the SCCO are not permitted to give rulings or legal advice on the Act or on the CPR nor to enter into any lengthy or technical advice as to the meaning of this Guide nor to recommend any individual
solicitors or costs draftsmen who may be willing to give advice or assistance.
(e) Advice and assistance may be available from the Citizen's Advice Bureau in the Royal Courts of Justice. Further information as to this is given in
Section 1 para 1.7, above.
(f) A
litigant in person who is unable to obtain copies of any prescribed form needed may ask the Costs Office for help (see Section 1 paras 1.5, 1.8 and 1.9). Most of the "N" forms mentioned in this Guide can be supplied free of charge.
22.2 Costs Recoverable by Litigants in Person

costs of litigants in person can be divided into four categories:
(i) out of pocket expenses (such as court fees, fares travelling to court, witness fees, etc) if they relate to work or
disbursements which would have been done or made by a solicitor had a solicitor acted for the litigant in person.
(ii) Payments made to obtain expert assistance in connection with assessing the claim for
costs. For this purpose a person is an expert if he is a barrister, solicitor, Fellow of the Institute of Legal Executives, Fellow of the Association of Law Costs Draftsmen, or a law costs draftsman who is a member of the Academy of Experts or the Expert Witness Institute. However, a litigant in person cannot recover any costs in respect of a person or entity whose services he retains to provide general assistance in litigation unless that person or entity has a right to conduct litigation within the meaning of s 28 Courts and Legal Services Act 1990Acts (see Agassi v HM Inspector of Taxes) [2005] EWCA Civ 1507. (Such a right is conferred by the Law Society, the Bar Council, the Institute of Legal Executives or an appropriate professional body.)
Costs for work done by the litigant in person which caused him or her pecuniary loss (for example, a litigant in person who is employed losing a day's pay through attending a court hearing or through going on a long journey to interview an essential witness).
Costs for work done by a litigant in person which did not cause him or her any pecuniary loss (eg, the examples just given if the work was done during leisure time).

Procedure on Detailed Assessment

(a) The procedure by which a
litigant in person seeks to obtain costs from another party is as set out in Sections 3 to 17 of this Guide (briefly, service of a bill plus notice of commencement and certain other documents, obtaining a default costs certificate or, if points of dispute are served, serving a reply and/or filing a request for a detailed assessment hearing).

(b) Where a litigant in person wishes to prove that he has suffered financial loss he should produce to the court any written evidence he relies on to support that claim and must serve a copy of that evidence on the paying party at the same time as serving the notice of commencement.

Calculation of Charges for Time Spent by a Litigant in Person Preparing the Case

In order to determine charges for time spent, the
costs officer or Costs Judge must decide four questions:

(i) What items of work were done and what time was actually spent on those items?
(ii) In respect of each item, how long was it reasonable for the
litigant in person to spend? The time allowed may be less than the time actually spent by the litigant in person and more than the time that would have been spent by a solicitor, had a solicitor been employed to undertake that item.
(iii) What hourly rate or other rate is it reasonable to apply in respect of time reasonably spent by the
litigant in person? Unless financial loss can be shown the rate allowed is £9.25 per hour under CPD Section 52.4 (£25 per hour in the Employment Appeal Tribunal).
(iv) If all the items of work for which
costs are recoverable had been undertaken by a solicitor, what would a solicitor's reasonable charges have been for doing such work?
(b) The evidence to be served in support of a claim to prove financial loss should include what work a
litigant carried out during the case, what employment the litigant may have taken up but for the case and what job offers were received and/or refused on account of the case (see Mainwaring v Goldtech Investments Ltd) [1997] 1 Costs LR 143 at page 156).
(c) There is an overall limit on charges for time spent preparing the case which can never be exceeded. The cost
officer or Costs Judge cannot allow more than two thirds of the sum which a solicitor could reasonably have charged for doing the work (CPR Section 46(2)).
22.5 Calculation of Disbursements

(a) The
litigant in person will be allowed all his reasonable disbursements (such as court fees, out of pocket expenses) in full if the costs officer or Costs Judge decides all of the following questions in his or her favour:

(i) were these
disbursements actually incurred?
(ii) If so, at the time they were incurred, did it then appear necessary or at least reasonable to incur them?
(iii) Are the sums claimed for each disbursement reasonable in amount?
(b) If, in respect of any disbursement the answers to questions (i) or (ii) is no, the amount claimed for that disbursement will be wholly disallowed.
(c) If, in respect of any disbursement, the answers to questions (i) and (ii) are yes but the answer to question (iii) is no, the
costs officer or Costs Judge may allow a reduced amount for that disbursement.