Monday, July 28, 2008

Litigants In Person

Representing oneself in Court is a false economy if the result of inexperience is to loose out because of misunderstandings, poor presentation or being ordered to pay the other party's costs. Recently I came across a litigant in person (someone who represents themselves in court as opposed to having legal representation) in England who, having agreed a settlement at a First Appointment/Financial Dispute Resolution hearing, was under the impression because he hadn't signed an order by consent the settlement wasn't binding. In fact when an agreement has been reached at the FDR and acknowledged by the Judge, then the agreement is final (Rose v Rose [2002]1 FLR 978). The ­aim is to encourage finality and discourage appeals and applications to be set aside. Unfortunately if consent is withdrawn later, but before the consent order has been drawn up, the court can make a final order noting that it is not a ‘consent’ order.

When I pointed this out and suggested proper legal advice would be a good idea it turned out the hapless man couldn't afford a solicitor but wasn't entitled to legal aid. He was under the impression that because the FA/FDR had taken place before the decree nisi he had grounds to appeal. (A judge cannot make an order unless there has been a decree nisi but they may direct that a consent order be made on pronouncement of decree.) There were not a lot of assets involved and the Judge had warned if the matter was pursued further the LIP may become liable for paying his wife's costs. Again the man was mistaken, thinking wrongly that because the other side had agreed not to pursue costs for the divorce petition he was immune to being pursued for the costs of the financial proceedings.

He is not alone, litigants in person often don't do themselves any favours but what alternatives are there when costs make legal representation inaccessible?


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