Although not impacted in the same way as private law children proceedings by the restrictions on access to justice brought about the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into force on 1 April 2013, there are many parties who represent themselves in financial remedy proceedings, sometimes due to cost and sometimes by choice.

Self-evidently most such litigants in person (LIPs) are not familiar with either the law underpinning their case, or the rules by which the Financial Remedies Court operates. The consequences of this were considered at length by the Judicial Working Group on Litigants in Person: Report (July 2013).1 The Family Procedure Rules 2010 (FPR) are complicated and can appear intimidating. Perhaps as a consequence, practitioners often believe (or certainly feel) that courts are kinder to LIPs than to those who are represented and treat those who represent themselves more leniently.

The recent judgment of Henke J in Philip John Mainwaring v Susan Claire Bailey (Costs) [2024] EWHC 2614 (Fam) – published on 16 October 2024 – is, however, a reminder that this is not the case. During the course of her judgment she stated (at [18]) that the Court of Appeal has held that LIPs are required to comply with the procedural rules on appeals as much as a represented party. She referred to Re D (Appeal: Procedure: Evidence) [2016] 1 FLR 249 per McFarlane LJ (as he then was) at [40]:

‘The fact that an applicant for permission to appeal is a litigant in person may cause a judge to spend more time explaining the process and the requirements, but that fact is not, and should not be, a reason for relaxing or ignoring the ordinary procedural structure of an appeal or the requirements of the rules. Indeed, as I have suggested, adherence to the rules should be seen as a benefit to all parties, including litigants in person, rather than an impediment.’

However, this guidance extends far wider than just the procedural rules that surround appeals. In Barton v Wright Hassall LLP [2018] UKSC 12, the Supreme Court was concerned with whether the court should retrospectively validate service in a case where the claimant purported to serve a claim form on the defendant’s solicitors by email, without obtaining any prior indication that they were prepared to accept service by that means, and where it was common ground both that this was not good service and that the claim form expired unserved on the following day. By a three to two majority the appeal was dismissed. Lord Sumption JSC (with whom Lord Wilson and Lord Carnworth JJSC agreed) stated:

‘[18] … In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings, But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules … The rules do not in any relevant respect distinguish between represented and unrepresented parties … Unless the rules and practice directions are particularly inaccessible or obscure it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.’

Even the dissenting judgment of Lord Briggs JSC (with whom Baroness Hale of Richmond JSC agreed) struck a note of caution:

‘[42] … there cannot fairly be one attitude to compliance with rules for represented parties and another for litigants in person, still less a general dispensation for the latter from the need to observe them. If, as many believe, because they have been designed by lawyers for use by lawyers, the CPR do present an impediment to access to justice for unrepresented parties, the answer is to make very different new rules (as is now being planned) rather than to treat litigants in person as immune from their consequences.’

Lord Sumption’s judgment suggests there may be some leniency towards LIPs in respect of ‘case management decisions and in conducting hearings’. Examples of this would be to give unrepresented parties longer time limits for compliance with case management directions or assisting unrepresented parties to present their evidence during a final hearing. However, the clear message is that when it comes to compliance with procedural rules and practice directions, LIPs should be treated the same as represented parties. This message is, however, arguably tempered slightly by the reference in paragraph [18] to ‘inaccessible or obscure’ CPR rules and practice directions. It is not clear what parts of the CPR are to be so considered and the same is the case with the FPR.

This language perhaps echoes that used in Re D (Appeal: Procedure: Evidence) [2016] 1 FLR 249 where McFarlane LJ (as he then was) referred (at [25]) to the fact that ‘some procedural latitude may be justified’ to accommodate LIPs but the appeal procedure established by FPR Part 30 ‘is neither complicated nor onerous’.

In Mainline Pipelines Limited v Thomas Derrick Phillips & Anor [2023] EWHC 2146 (Ch), HHJ Paul Matthews (sitting as a judge of the High Court) said as follows:

‘[6] … there is no special set of rules in this country for litigants in person. As a general proposition, we do not have two sets of rules, one for those with lawyers and one for those without. We have only one set, which (with a few exceptions) applies to everyone. Litigants in person need to know this. A relatively recent decision of the Supreme Court, in a case called Barton v Wright Hassall [2018] 1 WLR 1119, makes clear that lack of legal representation will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court …

[7] Moreover, litigants in person, in choosing to self-represent, cannot excuse themselves from compliance by saying that they do not know the rules. It is their responsibility, in choosing to take part personally in formal legal proceedings, rather than by way of professional legal representation, to make themselves aware of the relevant procedural rules, and to follow them. Apart from the many textbooks and handbooks on civil procedure which are published and usually available for consultation in libraries, the relevant rules themselves are available, without charge, via the internet from the Ministry of Justice website. There are many other websites, too, some providing the full texts of legislation and of caselaw precedents, and others proffering free legal advice. In addition, there are Citizens Advice Bureaux and law centres which offer free legal advice.

[10] … Litigants in person need to understand that, other than in trivial respects, the court is not going simply to ignore their failure to follow the appropriate procedures, or (worse) to treat them as though they had in fact complied. That is not fair on those who do comply …’

The same judge made similar comments in Greenwood & Anor v Pringle [2024] EWHC 84 (Ch). At [28] he referred to Barton v Wright Hassall LLP stating that it ‘makes clear that lack of legal representation will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court’.

Although many of the relevant authorities are civil cases it was made clear in by Munby J (as he then was) in A v A [2007] 2 FLR 467 that this is a distinction without a difference:

‘[21] … But what it is important to appreciate (and too often, I fear, is not appreciated at least in this division) is that the relevant legal principles which have to be applied are precisely the same in this division as in the other two divisions …’

And he said to like effect in Whig v Whig [2008] 1 FLR 453 (original emphasis):

‘[60] The Family Division applies precisely the same principles, and in precisely the same way, as the Chancery Division, or for that matter the Queen’s Bench Division …’

The impact of a LIP on the quasi-inquisitorial nature of financial remedy proceedings is a separate issue and one considered in Clarke v Clarke [2023] 2 FLR 1 per Mostyn J where the quantum of the spousal periodical payments order was considered on appeal even though the wife herself has not pressed it. This raised the question (at [27]) ‘of how much encouragement the court should give to a litigant-in-person to take the right points and to eschew the wrong ones’. The judge stated:

‘[29] … It has been stated time and again, for example in Barton v Wright Hassall LLP [2018] UKSC 12, that no special concessions or assistance should be given to litigants-in-person …

[30] On the other hand, in a financial remedy case the court exercises a quasi-inquisitorial function. It would be a dereliction of its inquisitorial duty if it allowed a case to be decided under procedural rules and customs which prevented a just decision being rendered on a particular set of facts because a litigant-in-person has, for whatever reason, chosen not to advance the relevant arguments applicable to those facts.’

Perhaps the pithiest conclusion in relation to the court’s approach to LIPs is that in Reynard v Fox [2018] EWHC 443 (Ch) per HHJ Paul Matthews (sitting as a judge of the High Court) at [46]:

‘You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person.’