WHY DISTRICT JUDGES SOMETIMES NEED THE PATIENCE OF SEVERAL SAINTS

In a recent case Mr Justice Kerr said, of employment judges “Employment Judges sometimes have to have the patience of a saint to do their job and are appointed because they are considered to have it, among other reasons.”*  Those words came to mind in reading the opening passages of the judgment of District Judge Nichols in  LFL v LSL (McKenzie Friends : breach of court orders) [2017] EWFC B62.  This has already attracted comment in the legal press (and beyond). It is worthwhile reading the relevant passages in full.

THE JUDGMENT

  1.  This is the final hearing of the wife’s application for financial remedies, which she commenced by Form A on 25/07/2016. It is ancillary to the wife’s petition for divorce, presented on 28/06/2016. Decree Nisi was pronounced on 17/10/2016. The decree has not yet been made absolute.
  2.  The husband is a litigant in person. There was an application at the start of the hearing for him to be accompanied by a McKenzie Friend, Mrs Mary Bennett. There was nothing controversial in that. However, on the second day of the hearing, at the lunchtime adjournment, there was an outburst from her, during which she would not leave the court and threatened complaints against me, the solicitor for the wife and criminal sanctions against the wife. In consequence of her outburst, which was the last in a series of interruptions, I decided that her conduct disrupted the proceedings and I excluded her from the courtroom for the rest of the hearing.
  3.  Because of the threats that she made, I have decided, sadly, that I must record in this judgment the events surrounding her involvement in the case, should they be required to be referred to in the future.
  4.  At the start of the hearing Mrs Bennett made an application for rights of audience. She had completed the standard form of notice which sets out, on the back of the form, a precis of the Code of Conduct for McKenzie Friends. She represented that she had considerable experience in the Employment Tribunals (40 years). She told me that the husband is ill and confused due to him using medication and having had a nervous breakdown. The husband had totally failed to comply with rules of court and had not provided information, given disclosure or followed procedure and it was no surprise, therefore, that there was no formal medical evidence to support that contention.
  5.  When I questioned Mrs Bennett, rather than consider the question and provide an answer she seemed to have her own agenda and commenced her first response with the words “this woman” (referring to the wife) in a most aggressive and (in my opinion) derogatory way. That initial communication led me to the conclusion that Mrs Bennett’s participation in any way other than acting as McKenzie Friend was likely to lead to an inflammatory situation which in turn, was likely to disrupt the proceedings.
  6.  The husband was addressed and I formed the view that far from being confused about the proceedings he was perfectly capable of conducting his case himself. I satisfied myself that he was able to read and that he understood the nature of the proceedings. He was nervous. That is not uncommon in litigants in person and is not in itself a good reason to allow an unauthorised person a right of audience.
  7.  I refused Mrs Bennett’s application. As things turned out, my decision was justified. As well as the matter referred to in paragraph 6 of this judgment, there were other issues that arose during the course of the hearing. Firstly, Mrs Bennett interrupted the hearing on no less than 5 occasions on the first afternoon. She interjected when the husband was trying to cross examine the wife. She tried to give evidence herself. I warned her on those occasions that she risked expulsion from the court if she persisted.
  8.  Secondly, on the second day of the hearing I repeated my warning to her before the day’s proceedings started. There was a minor interruption during the course of the morning. A further warning was given.
  9.  Thirdly and far more seriously, at the luncheon adjournment, the husband was in the middle of his evidence and he was given the usual warning that he should not speak to anybody about his evidence or the case generally during the adjournment. Mrs Bennett thereupon wrote a note on a piece of paper and referred the husband to it (having just heard the warning given). When questioned what was in the note, she responded with the tirade that I refer to in paragraph 4 of this judgment.
  10.  She was then excluded from the courtroom for the rest of the hearing.
  11.  The husband was perfectly capable of speaking for himself and I am satisfied that he suffered no prejudice as a result of having to conduct his own case (as opposed to his failure to comply with rules and procedure ( as to which see later)).

 

Jones v The Secretary of State for Business Innovation & Skills (Practice and Procedure: Bias, misconduct and procedural irregularity) [2017] UKEAT 0238_16_2906