Article by Naomh Gibson
There are a number of reasons why individuals may choose to represent themselves as a ‘litigant in person’. The most common motivation is financial, as fewer cases now qualify for public funding than in days gone by.
Despite their increased numbers, some litigants in person are reporting discriminatory and unfavourable treatment by the judges hearing their case. However, as seen in the recent decision in the libel case of Serafin v Malkiewicz & Ors [2020] UKSC 23, if it is severe enough, judicial bullying may be grounds for a trial to be declared unfair, and the decision appealed to be made again fresh with a different judge.
In this case, the claimant sued the defendants for libel in respect of an article which they published about him in a newspaper addressing issues of interest to the Polish community in the UK, in which he was accused of abuse of position and fraud. The Claimant chose to represent himself despite English not being his first language. During the 5 day trial, there were up to 25 identified instances when the High Court judge acted inappropriately.
After considering the transcripts, the Supreme Court held that the “nature, tenor and frequency of the judge’s interventions were such as to render [the trial] unfair”. The Supreme Court commented that while legal professionals will generally be equipped by training and experience to withstand a degree of judicial pressure, judges must not forget that the litigant in person is not likely to have the same level of training and experience, and so judges must temper their conduct accordingly.
The Supreme Court provided a Schedule of these instances, which were held to be examples of inappropriate conduct by Mr Justice Hays. The following themes emerged:-
- Cutting off a witness when they giving evidence too quickly or without allowing them to explain
- Using aggressive or sarcastic language
- Expressing frustration or irritation with a witness or party
- Applying pressure: “This does not look great, frankly, because either you were lying to the investors or you are lying to me. If you are lying to me, the consequences can be really awful, because you understand, I do not like being lied to. Which is it? Who were you lying to? Were you telling the truth to the investors and therefore lying to me, or were you lying to the investors and telling the truth to me?”
- An indication that he had already decided the case outcome before evidence was finished: “…It is not very ethical behaviour, this, but we will see where the weight of the evidence is leading. Because if I conclude that you are acting unethically as a businessman, I am not sure [that] the precise terms of the defamations are going to matter to you much. Do you understand that? You will lose, but there is a lot more evidence yet.”
- Suggesting a witness or party has done something illegal or immoral when this is not relevant to the case
This is not to say, of course, that a single instance of any one of the above bullet points will automatically render a trial unfair, but this may be the case where there is a wider pattern of bullying behaviour and repeated examples of inappropriate conduct by the judge.
What many litigants in person do not realise is that it is possible to go directly to a barrister without having to involve anyone else (e.g. a solicitor) if they so wish. Halcyon Chambers have a number of our barristers approved by the Bar Council to take instructions directly from members of the public. Pleas contact our clerks on 0121 237 6035 or clerks@halcyonchambers.com for further information.
Naomh is a first six pupil accepting instructions from July 2020 onwards.
