Lessons from the Ipswich Family Court: 7 mistakes that litigants in person often make

If only I had the near miraculous ability of Gordon Exall, editor of Civil Litigation Brief, to convert complex and often rather turgid case-law into manageably-sized blogposts of crystalline clarity. Sadly he hasn’t yet done that to the extraordinary matrimonial case of VW v. BH, and I doubt that he will because Gordon’s posts tend to be aimed at legal practitioners. The lessons of VW v. BH, a divorce case recently heard by HHJ Lynn Roberts at the Ipswich County Court, are more for those attempting to litigate without lawyers.

Before we dive into the detail of the case, a warning: I really don’t know a great deal about family law. I tried my hand at it many years ago and found that I was pretty hopeless. If you want to read a blog by someone who really knows about family law, I would recommend either Lucy Reed’s Pink Tape (Lucy has also written the fantastically useful Family Court without a lawyer, a handbook for litigants in person), or David Burrows, who likes to concentrate on broader questions of family law policy.

What I do know is that the disputes are usually about money or about children. The days when the evidence from the latest celebrity defended divorce could fill the Sunday papers – seedy Brighton hotels with private eyes examining the sheets, hoping that the Queen’s Proctor would not smell a rat, and so on – have long since gone the way of co-respondent shoes.

My main observation about family law financial disputes – this paragraph is mainly for any aspiring advocates who happen to be reading – is that you need to be able to perform mental arithmetic under pressure. A complete inability to do so was one of a number of flaws which made me fundamentally unsuited to practice in the family court. In the time it would take to position my solar-powered calculator (remember those?) into the sunlight, my opponent would have worked out the answer to 62.5% of £343,000, or whatever the question was, in her head: in fact probably before I even knew what the question was.

Do you ever watch Child Genius? It’s an unsettlingly compelling TV reality show in which super-precocious 10 year olds compete against the clock to answer tricky questions in front of an audience of Tiger-Mothers. Imagine being an ordinary plodding ten year old thrown into the final of Child Genius and having about 5 seconds to answer questions like “multiply 22 by 4, subtract 23 multiply by 6 and finally divide by 3,” followed by “spell ‘onomatopoeia’” and you will have some idea of my feelings of inadequacy in the family court. As well as a facility for mental maths you also need to be – which I am not – a walking www.moneysavingexpert.com, because arguments tend to range over things like endowment mortgages, pension schemes, company accounts, tax returns, offshore accounts, ISAa, NISAs and TESSAs.

Disputes over children were awful in a different way. For one thing, they never seemed to end. If you ever allowed yourself to believe that you had sorted out an access dispute (as they were then called), you could be quite sure that a few weeks later you would be back in the same stuffy Harlow room arguing again over whether the pick up should be 3 or 3.30, and should Darren stay overnight and could we get a clause in the agreement that he could ring his mum between 5.30 and 6.00 and while we are about it how could it be fair that Dad had him on Christmas Eve last year and actually in our family Christmas Eve is more important that Christmas Day and perhaps he could make up for it with an extra day in the summer as long as it isn’t between August 21^st and August 31^st as we were hoping to go on holiday then although no we haven’t actually bought a ticket but he said that would be alright and now he’s moving the goalposts and ….

You think it’s bad reading about it? It was much worse arguing it, and worse still having to argue it again 6 months later.

Nowadays the warring parties in divorce disputes are more likely to be litigants in person but that has not made the disputes any less ugly, rather the reverse, as VW v. BH shows.

The parties have been anonymised, which is fortunate for BH, the husband, who does not emerge well from Judge Lynn Roberts’s lengthy judgment.

The case was one of the very rare family cases that was not – or not ostensibly anyway – about money or children. Mr H decided to defend his wife’s petition even though he admitted adultery, admitted that the marriage had broken down and indeed actually wanted a divorce himself on the grounds of his wife’s alleged unreasonable behaviour. In other words it was a “point of principle.” I am not entirely sure what principle he wanted to establish, but he did manage to establish this: that he was a vain, deeply untrustworthy, controlling, violent, sexually incontinent dipsomaniac with herpes and a dishonestly acquired firearms licence, who had treated his wife appallingly for many years. So, as they like to say in the Court of Appeal, “to that extent” his action succeeded.

It may be that the publicity given to the recent case of Owens v. Owens [2018] UKSC 41 might encourage other unhappy respondents to try their luck. In Owens, the husband successfully argued, all the way to the Supreme Court, that his behaviour – being “moody and argumentative” and “prioritising his work over her” – was not so bad that his wife “could not reasonably be expected to live with him.” Reluctantly the Supreme Court agreed that the trial judge had been entitled to refuse the wife’s petition.

BH, however, is a far more typical case. Mr H had at one time been represented by solicitors. For one reason or another – my guess is that it was because they gave him what lawyers like to call “robust” advice – he decided to sack them and pursue a course that any lawyer would have told him was inadvisable.

In order to obtain a divorce S.1 of the Matrimonial Causes Act 1973 requires a petitioner to prove two things:

1. that the marriage has “broken down irretrievably” and
2. establish at least one of a number of possible “facts”:

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) [desertion];

(d) [2 years separation and divorce by consent];

(e) [5 years separation].

VW and BH both wanted to get divorced. They agreed that their marriage had broken down. Mr H also agreed that he had committed adultery; indeed after initially denying it, he agreed that he had started an affair with his wife’s best friend and had continued to commit adultery with her for 22 years. He did deny a seperate allegation of more recent adultery with a different woman.

You might think, and you would be right, that if a marriage has obviously broken down, if both parties hate each other’s guts, and if both want a divorce, it is little short of absurd that a court should have to bother with deciding anything beyond how to divide the matrimonial assets fairly (the children were grown up). The government has recently put out a consultation paper on moving in that direction, and if you are interested you can read about it on David Burrows’s blog. Sadly, that is not yet the law.

Mr H argued that the divorce should proceed not on the grounds of his adultery but of his wife’s “unreasonable behaviour.” He claimed that she had once called him a “wanker” (it turned out that he hadn’t actually cared very much about that, and anyone reading the case would be forced to conclude that she could reasonably have used much stronger language) and, rather vaguely, that she had been “financially deceitful.” She had also – he claimed – not properly cleaned up the mess produced by the couple’s the two poodles and two cocker spaniels. He also seemed grumpy that they even had two spaniels, which he had given her in happier times, because he was allergic to them (although confusingly not to the poodles). The final straw was that she ridiculed him over his purchase of a bird feeder and had threatened to cancel an Easter egg hunt for their grand-children.

Having dismissed his lawyers, Mr H then proceeded to give a master-class in how not to behave as a litigant in person, or indeed as an advocate.

He made at least 7 mistakes which are characteristic of litigants in person.

1. Litigate over a “point of principle.”

This is the absolutely classic mistake. It is certainly not only LiPs who make it, but without anyone to warn them it is one to which they are particularly susceptible. They think establishing a principle will be a breeze, and well worth a punt, especially if it annoys the wife. It virtually never turns out that way, except perhaps for annoying the wife.

Even if he had succeeded, Mr H’s victory would have been entirely Pyrrhic (a good word for an early heat of Child Genius). It would not have helped him in the only dispute that might make any rational sense, over the distribution of the matrimonial assets. Except in the most exceptional circumstances, the courts never take a spouse’s conduct in the marriage into account anyway.

On the other hand, there is no matrimonial litigation in legal history that has not increased the level of acrimony, upset the children (even adult children), wasted money and increased the stress of both parties to hitherto unimagined levels.

And even if the courts had decided to take the parties’ conduct into account in the financial dispute, his own admitted behaviour in conducting a clandestine affair throughout most of the marriage was so obviously worse than the trivial allegations he was able to level against his wife, that it could only have rebounded against him.

2. Misunderstand the law

Mr H had been “studying divorce law and had found out that knowing of an affair for years meant a party could not rely on that in divorce proceedings.”

A little knowledge can be a very dangerous thing, although those who “study the law” often don’t realise that. Law isn’t necessarily all that difficult, but it is often difficult, if you will forgive a two cliché paragraph, to see the wood for the trees. Mr H was not quite into the realm of “freeman of the land” craziness but his study of the law seems to have given him an entirely misplaced confidence. He saw those bits that helped him, but overlooked the bits that didn’t.

He was correct that, if his wife had continued to live with him for 6 months after learning of an act of his adultery, she could not rely on that adultery. However, as the judge pointed out:

“It is important to note that each act of adultery is relevant so that when the petitioner discovers a fresh act of adultery, there is a whole new period of six months during which she can live with the respondent but still petition on the basis of that act of adultery.”

For all his study of the law, the Judge said:

“I do not think Mr H has grasped this fact.”

In fact – as the judge decided – his wife had not known of his affair until less than 6 months before she petitioned him, so even Mr H’s flawed legal learning was academic. Even if she had known about it, it would not have helped him. He had started another affair, with a second woman within the 6 month limit. His entire argument about when his wife learnt about the 22 year affair was completely beside the point.

3. Fail to see yourself as others see you

It is a painful truth, but very few of us see ourselves as others do. Mrs Thatcher memorably said that “every Prime Minister needs a Willy,” and so does every would-be litigant in person; in other words someone, either a good lawyer or a good friend, who is prepared to point out some home truths, if necessary very bluntly. Whatever Mr H thought of himself, to any objective observer a husband who has been conducting a clandestine adulterous affair for years is likely, all things being equal, to come off worst in stark issues of credibility.

Any decent matrimonial lawyer would have realised this and advised accordingly. The advice might have to be tactfully tailored: Mr H’s solicitor would probably have started by saying something like “you face rather an uphill struggle given your own admitted adultery.” If he failed to take the hint, a conference with counsel could have been held. After finishing the tea and biscuits and getting the pleasantries out of the way, the barrister would get down to business. “In my professional opinion – please don’t take this personally – it will be very hard to persuade the court that you are anything other than an arrogant, controlling and deceitful love rat.” It is counsel’s job to give unwelcome advice. It may well have been given, but if so Mr H. simply ignored it.

4. Ask for unnecessary adjournments

It is relatively easy to start litigation, but as the court date draws near the day in court ten begins to seem like a much less appealing prospect. Very few people actually like going to court (the few eccentrics that do run the risk of being certified as vexatious litigants). So it is often becomes tempting, even if you are the one who has insisted on litigating, to keep finding reasons to put off the evil day. Judges tend to be both irritated and sceptical whenever a party claims to be too ill to attend.

Mr H’s divorce trial was originally fixed for 5^th September. Early that morning he telephoned the court to say that he could not come to court because he had been stabbed and was in hospital. It later transpired that for some inexplicable reason he had not called an ambulance for 2 ½ hours after the apparent stabbing, and then refused to co-operate with the police investigation. But faced with a respondent in hospital the judge had little choice. The trial was adjourned and refixed for 1^st November.

On October 31st, Mr H. again asked for an adjournment. He said he had not got over his injuries. He was suffering, he said, from “post-concussion syndrome.” He suggested that “he had been attacked because of the weight of evidence he had recently delivered to his wife’s solicitors in order to prevent him from attending the hearing.”

To say the judge was sceptical would be under-stating it:

“I was not satisfied that Mr H had been attacked as he said. I do not know. I do not know if he was attacked at all or whether he arranged an attack. I thought the idea he put forward that his wife had in some way sought to have him attacked was ridiculous, not a line the police were pursuing and, in any event, was counter to Ms W’s interests. The so-called evidence which Mr H referred to is not admissible in any event, as Ms W’s legal team would have been well aware of.”

In the event, Mr H turned out to be unaffected by concussion:

“I have noticed no difficulty for Mr H in concentrating or remembering or putting his case. He was well-prepared with detailed notes on the evidence, knew the papers extremely well and had details in the forefront of his mind. I was clearly right to refuse the adjournment which I consider was a further attempt by Mr H to frustrate Ms W’s wish to conclude the divorce and allied proceedings.”

So the effect of asking for an adjournment was that the judge had yet another reason to dislike and disbelieve Mr H.

5. Do not cross-examine your daughter about STDs

Ms W called her daughter as a witness, mainly to say that she had only learnt about her father’s adultery shortly before the divorce petition was served. Mr H’s case was that W had known about it for years, partly because he had caught a sexually transmitted disease from his mistress, Ms Y, and had told his wife the fact years earlier. Mr H decided it would be a good idea to ask his daughter whether she knew about this. It wasn’t and she didn’t, whereupon Mr H said that she was lying. I’m not sure if Lucy Reed deals with the point directly in her book, but if you are a litigant in person, a good rule of thumb is that it’s very rarely a good idea to cross-examine your daughter about sexually transmitted diseases that you may have contracted during your adulterous affairs.

6. Forget that you will be cross-examined too

You cannot control the things that you may be asked about, and if you are a litigant in person it is especially likely that you won’t anticipate them either. Mr H was cross-examined by Christopher McCourt of 1 Kings Bench Walk, described on his chambers website as:

“Immensely bright, hard working, reliable and definitely preferable to have him on your side in court as opposed to against you.”

So it proved. Admittedly Mr H offered him a number of fairly open goals, but Mr McCourt seems to have torn him apart with calm efficiency. As an added bonus, for Mrs W, Mr H admitted in his cross-examination that as well as all his other lies he had been dishonest to the Essex Police in matters concerning his firearms certificates. The judge summarised this part of the case (which I very much doubt Mr H had anticipated at all):

“[Mr H] is clearly proud of his excessive drinking and thought everyone occasionally gets so drunk they have no memory of what has happened. He told me that he had not told the police responsible for fire arms and shotguns about his diagnosis of post-concussion syndrome. He told me his current certificates were under review and that he had no guns in his possession, though he had access to them. He told me he was still shooting. He told me that when applying for his certificates he had lied when answering the questions about being in a happy marriage and about how much he drank, he told me everyone did that. I do not think so. I shall be writing to Essex Police about his certificates as he admitted to committing offences under section 26 [sic, she probably meant S.28A] and/or 29 of the Firearms Act 1968.”

So not only did Mr H lose the divorce case, he also now faces what I would have thought is the virtual certainty of losing his firearms certificates and the high probability of prosecution for offences under the Firearms Act, each of which carries a potential punishment of 6 months imprisonment.

As he probably did not say: “Result!”

7. Ignore the costs risks at your peril

Many litigants in person think that by not instructing a lawyer, they may be putting themselves at a disadvantage in the case, but at least they are saving on lawyers’ fees. Perhaps Mr H thought that; but he was wrong. The rules about costs are complex, but in most litigation there is at least a presumption that the losing party pays those of the winner. It often comes as a pretty hard blow. The only consolation is that the loser is usually only required to pay costs which the winner can prove were “reasonably and proportionately” incurred; if there is any doubt about that, it is resolved in the loser’s favour. Unfortunately for Mr H, the judge decided that his conduct of the litigation had been so egregious that he should pay his wife’s costs assessed on an “indemnity” basis, in other words, he should pay every penny of her costs unless he could prove that they were unreasonably or disproportionately incurred. In practice, the difference will probably cost Mr H – and save his wife – many thousands of pounds.

*** *** ***

So there we are. If you are an unhappy spouse contemplating litigation, learn from Mr H’s mistakes. Of course, it takes two to tango but do at least try to sort things out by agreement. Employ a competent solicitor if you can afford one, but if you can’t, buy Lucy Reed’s book instead. Contest nothing on a point of principle. Always be prepared to discuss a sensible compromise, and remember that the only thing predictable about litigation is that it will be far more unpleasant, gruelling and expensive than you imagined possible.