Saturday, 29 March 2008

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

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]

And

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.


History

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.

The LIP

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]

And,

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

And,

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]

And,

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

And,

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]


And,

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]
And,
Most unrepresented litigants found the procedures hard or impossible to understand.
And,
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]
And,
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]
And,
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]
And,
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]
And,
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]
And,
Lords Justices were generally sceptical about any claim that the new rules had reduced the cost of appellate litigation. [emphasis added]
And,
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.

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