The cost of family breakdown?

There’s a lot to think about when you’re facing a family breakdown, not least where to go for sound advice about it.

You’ll want to know how best to settle financial matters, how to divide joint belongings and how a stress-free resolution for any children affected can be achieved.

Advice on such matters can be obtained from voluntary agencies such as the CAB or you could consider consulting a solicitor.

If you do want to instruct a solicitor, the option of Legal Aid has almost all but disappeared save for instances where there has been domestic violence. Thus funding legal expertise will need to be met from savings or by borrowing from family and friends. Unsurprisingly this has led to a rising number of litigants in person – people who decide to undertake the proceedings for themselves.  Whilst there have always been litigants in person, their numbers have increased following Legal Aid cuts, as well as the increase in the small claims limit and the introduction of Employment Tribunal fees.

With the rise of litigants in person, the Law Society and Bar Council have prepared documents advising solicitors how to conduct themselves, as unrepresented parties may be encountered at any stage of the court process. Some litigants in person will take legal advice up to the point of going to court where they will represent themselves or they might represent themselves at appeal having been represented at first instance.

It is also likely to become increasingly common for litigants in person to receive legal advice for some stages only and many will choose to litigate or defend claims without having obtained any legal advice at all.

The question that those facing the costs of a family breakdown have to weigh up is whether seeking legal advice at some or all stages is worth it and whether the cost of instigating representation is proportionate.

In November 2015 two cases hit the headlines in the legal press. Parties had failed to take legal advice, become obsessed with their litigation and racked up costs which were disproportionate to the outcome.

The first to be reported was Veluppillai v Veluppillai 2015 EWCH 3095. In this case the Judge, HHJ Royston, described the conduct of the husband conducting his own case as “abysmal”. During the course of the proceedings there had been over 30 hearings, including four appeals, mounted by the husband. The husband was accused of extreme litigation misconduct. Not only was there the main suit but there were also parallel proceedings concerning a bogus loan asserted by the husband’s sister. During the course of those proceedings, the husband made threats to kill the wife and the Counsel for which he was committed to prison for contempt.

During the ancillary relief proceedings the husband was even removed from the courtroom on at least one occasion by the security staff and he was repeated by warned by judges about his unpleasant and menacing conduct whilst in court. He also assaulted the wife’s Counsel and the wife in court. He was later convicted of assault but skipped the sentencing hearing and fled abroad from where he bombarded the Court with abusive emails claiming he had a fatal illness and demanding that the proceedings be adjourned indefinitely. As a consequence of his behaviour, he was ordered to pay the wife’s costs, which were assessed at £146,609.

The following week, the legal papers reported the case of Welch v Welch 2015 EWCH 2622. The matter was before Holman J who referred to the wife’s approach to litigation as obsessional and indeed irrational. The judge noted that the proceedings had been phenomenally expensive with the wife owing costs to the husband of around £70,000 and was additionally in debt in the sum of £441,000.

Both cases highlight the scale of the problems the courts face from unrepresented and litigants who have lost objectivity on the way and conduct malicious, aggressive litigation. Whilst there are sanctions available to the court, those sanctions are often in relation to the final award that is provided to the parties. Whilst not all litigants in person behave in such a manner that the cases illustrated that, by acting as a litigant in person, there may still be responsible for costs even though they may not be those of your own solicitor.

For further information please contact John Brownrigg.