Judge issues warning on late service and litigants in person

A judge has warned against unfairness to litigants in person caused by late service of documents.

In a recent child abduction case heard in the High Court Family Division a 14-page counsel’s position statement and four law reports totalling 100 pages were given at the door of the court to a litigant in person who was not fluent in English.

Mr Justice Peter Jackson said in his judgment: “This is unfortunately not an unusual occurrence, and it calls for a remedy.”

He said that where a case involved a litigant in person the court should normally direct that the Practice Direction documents under PD27A are served on the LIP at least three days before the final hearing, usually by email, and that where time permits, the court should consider directing that the key documents are served with a translation.

“In cases where late service on an LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected,” the judge said.

He said it was obvious that the right to a fair trial included the right to know the case one has to meet, but inexperienced LIPs were hesitant to complain about matters such as late service.

Because applicants in child abduction cases are entitled to unconditional legal aid while the respondent is only entitled to means and merits-based legal aid “it is common for the court to be faced with an applicant, appropriately represented by specialist solicitors and counsel, while the respondent has no legal advice or representation at all and in many cases cannot speak English,” he said.

“It might be added that late service of documents further weakens the position of LIPs by removing any opportunity they may have to seek advice and explanation ahead of the hearing from those who may be more familiar with the system and the language.”

The judge said that in the case concerned the late served position statement “was of real assistance to the court and, had she had it sooner, could only have helped the mother, even though it was in English.

“As it was, time was wasted before the hearing could begin, with the mother studying the documents with the help of the court-appointed interpreter. That help was kindly provided even though the core function of the interpreter is as an interpreter and not a translator.”

Mark Smulian