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Media Article
Clare Dyer
The Guardian, Monday February 11 2008
The art of self-defence
Heather Mills today starts her battle to win some of Paul McCartney's millions - representing herself and opposed by a crack legal team. But she's not the only one to go it alone in court. More and more litigants are choosing to fight their own corner, reports Clare Dyer
A lawyer who acts for himself has a fool for a client, according to the old saw. If you have no legal qualifications whatsoever, logic suggests that representing yourself in court is even more foolhardy - especially when tens of millions of pounds are at stake. Yet that is what Heather Mills will do today when she steps into the ring at the Royal Courts of Justice in London to confront Paul McCartney's high-priced, expert legal team. Having parted company with her legal advisers, who hold her IOU for at least £1.5m in costs, she is resolved to fight her own corner from now on in the battle for a share of the ex-Beatle's fortune.
How much she will get is hard to predict, and we may never know for sure. McCartney's wealth is usually estimated at £825m, but informed legal sources put it closer to £200m. The starting point for wives after a long marriage is 50%, but the McCartneys' union lasted less than four years and most of his fortune was accumulated long before Sir Paul, now 65, met Heather.
Over five days, behind closed doors, she will square up against Nicholas Mostyn QC, one of the most experienced family law silks at the bar and veteran of some of the most celebrated and bruising "big money" divorce encounters. One of her hardest tasks will be to keep her cool while cross-examining her ex-husband. If her recent interview on GMTV is any guide, that may prove a struggle.
Those who fight their own legal battles in court almost always find the experience daunting, even when much less is at stake. Nigel Pascoe, a QC with more than 40 years' experience at the bar, says the pitfalls are many, even for the calm and focused. "Very few make a good job of representing themselves.
The chief problem is the inability to phrase tight questions or sometimes any questions at all. What tends to happen is a series of speeches instead of questions.
"Obviously they can't be expected to know the rules of evidence and can blunder around in a cavalier fashion, to the intense annoyance of their opponent and, quite frequently, the judge. In that untutored state, they can do their own case real harm by bringing out material which, for one reason or another, is not admissible.
"They tend to put everything and the kitchen sink to their witnesses, only to get the answer yes or no. Invariably cases last longer. Judges tend to lean over backwards to see that unrepresented litigants have a fair trial. But I simply don't believe their success rate will be as high as if properly represented. Personally, I feel sorry for Heather Mills."
Robin Tolson, a leading family law QC, warns: "Cross-examination is an art that you master over about 15 years. It just cannot be done first time out." However, he thinks Mills, 40, might be helped by her intimate knowledge of her former partner. "Wives usually know how to cross examine their husbands - they get straight to the pressure points."
Research shows that those who handle their own litigation make more mistakes than lawyers do - and more serious mistakes - and that the outcomes of their cases are generally worse than for those who are legally represented.
Judges will often descend into the arena to help "litigants in person", as they are called, but the extent to which they will intervene varies from judge to judge. Lawyers say that Mr Justice Bennett, the judge who drew the short straw in the Mills/McCartney case, is an old-school, no-nonsense type who won't countenance any time-wasting and is not inclined to be over-generous to wives. "I think he's someone who almost certainly thinks the law has gone too far in favour of wives. I would have thought he'd be a good draw for Paul McCartney," says a solicitor who represents rich divorce clients.
Appearing without a lawyer is a rarity in divorces where the legal costs are tallied in the millions. But further down the income scale, more and more people are being forced to represent themselves, particularly in family cases. With the substantial erosion of eligibility for legal aid, many are too well off for state help but too poor to pay for lawyers. Legal aid covered most of the population when it was introduced around 1950, but successive lord chancellors have failed over the past 20 years to bring the income limits in line with inflation. In 2008, hardly anyone with a full-time job qualifies.
John Fyfe works as a security supervisor for £8 an hour but, after consulting 42 solicitors in London, he found that the cheapest charged £142 an hour. He had no choice but to act for himself when he applied to the court for help in finding his five children, who had been moved out of London by his wife, and for an order allowing him to see them regularly.
Fyfe turned to the charity Families Need Fathers, which has helped many fathers caught up in battles over their youngsters. With their assistance, he got before the family court quickly. The judges helped him locate his children and he recently won a shared residence order so that in future they will split their time between him and his wife. He is now homeless after his house in east London burned down, but the court has ordered the local council to rehouse him.
For all the help he had, he still found the experience "very, very daunting. I wouldn't wish it on anybody, but when it's your children you'll do anything." Each time he went back to court, he was dealt with by a different judge, six of them in all.
Cost is usually a factor in the decision to go it alone in court, according to a 2005 study by Professor Richard Moorhead and Mark Sefton from Cardiff University that interviewed judges, court staff and litigants in person. Apart from not being able to afford lawyers, the reason most gave for representing themselves was a perception that lawyers were not necessary or not best placed to advance their interests. They saw themselves as more factually expert in their dispute and more able to manage their case than a lawyer - or they just wanted to "have their say". Less constrained by legal notions of relevance, they could advance arguments or raise issues that a lawyer would not.
That lack of constraint, combined with ignorance of the law and procedures, is what can make dealing with a litigant in person a "nightmare", according to one judge. Two litigants in person - one on each side - can be the "ultimate nightmare". At least with one, the lawyer on the other side will usually help to explain the ropes and outline what has to be done. With growing numbers unable to afford lawyers, cases take longer and delays grow.
Dave Morris and Heather Steel, the two penniless environmental activists who took on McDonald's by themselves after the international corporation sued them for libel, had to be given so much leeway by the judge that the trial made legal history with its length - 313 days. McDonald's scored a partial legal victory, but some of what the McLibel two said about its products and business practices was held to be true and the result was a PR disaster for the fast-food chain.
"Litigants in person usually have reams and reams of paper, hidden in which is sometimes a kernel of gold if you can find it," says a court of appeal judge who deals with family cases. "Some of them have a genuine grievance - I feel sorry for them. It's hard to explain to them just how limited our role is on appeal."
A few litigants in person become obsessively addicted to litigation and are driven, Bleak-House style, to madness. One father was outraged when a court ordered him to leave his home after he smeared his wife with toothpaste and emptied a wastebasket over her head. He took up residence in a shed in the garden and unleashed a torrent of litigation. For one court appearance he wore a Darth Vader mask and carried a sword. A psychiatrist explained: "His delusion that he is the Lord of the Jedi, battling against numerous evil forces, appears to be an important factor in his current inability under stress to deal logically with matters concerning his family." He was held incapable of managing his own litigation and the official solicitor was appointed to act for him. Eventually a court order banned him from bringing any more court proceedings without special permission.
The appeal court is faced with growing numbers of unrepresented litigants making a last-ditch attempt to right the perceived wrongs done to them. "There is no sight more depressing than that of a litigant in person, borne down by frustration, anger and plastic bags filled with unsorted paper, staring up at the judge in the expectation of some quietus," says appeal court judge Alan Moses. "What he wants, no court can give: some public acknowledgement and satisfaction for a deeply felt grievance, some release from the anger and misery induced by a resentment growing ever stronger as the years have passed. If only someone had listened and appreciated the hurt early on.
"But by the time the litigant in person gets to court it is all too late," he says. "The time for listening has passed. The court, often faced with vituperation expressed in green ink or inadequate spacing between the lines typed on an old Olivetti, cannot hear what may have been a genuine cause for complaint because the complaint is lost in the sound and fury, and the litigant won't listen because no one has been prepared to listen to him in the years gone by.
"What is needed is not only understanding but therapy. The courts grapple with the former, but they inevitably fail to provide the latter."
The swelling tide of litigants without lawyers puts severe pressure on the Citizens Advice Bureau at the Royal Courts of Justice, where the high court and court of appeal are housed. The bureau has three solicitors on staff and a rota of others who work in law firms and give their services part-time as volunteers. A second CAB in nearby High Holborn deals with family cases. The CAB solicitors give advice and help but cannot go into court for their clients.
"I've been here five years and we always have more people than we can see," says Rebecca Scott, the senior solicitor at the Royal Courts of Justice CAB. "We see 60 clients a week at the moment and I would say the demand for the service is probably almost double that. It's ever increasing due to cutbacks in public funding."
Cases are generally about "the sort of thing that affects people as individuals - housing, family, personal injury, employment, and there's been a massive increase in debt. The largest subject area for us is debt, probably followed by housing." The dedicated bureau for family cases, staffed by volunteers from City law firms, also sees about 60 clients a week.
The greatest difficulty for clients, Scott says, is understanding the procedure to be followed. "They might believe very strongly in their case but not know how to present it formally in legal documents. Access to solicitors is a problem. Very often solicitors want money on account before they will even see a client and for many people that's just not possible.
"Even cases that might have merit can often be struck out because the client hasn't put in the right form or the right document. They do face a real uphill struggle."
If they are appealing against a lower court's ruling, "their constant expectation is that they'll appeal and be successful and the reality is that a very small number of appeals succeed".
Legal aid is readily available for anyone facing trial on serious criminal charges. Even so, according to a high court judge who regularly presides over high-profile criminal trials, there is a growing trend for defendants to sack their lawyers and take over their own defence. The motive, he suspects, is to try to derail the trial. The upshot is that the villain gets to cross-examine personally the witness whose evidence could send him down.
That happened in the recent Securitas armed robbery trial, where one of the accused, used car salesman Stuart Royle, dismissed his legal team. He ended up cross-examining Michelle Hogg, the hairdresser-turned-makeup artist who had charges against her dropped in return for agreeing to give evidence that she supplied the gang with cosmetic prostheses to disguise their appearance.
The colourful exchange included the best soundbite of the trial, when the judge admonished Hogg and Royle for speaking at the same time. She shot back: "He is talking absolute rubbish - he might as well be talking out of his bottom." That's a riposte that might come in handy for Paul McCartney this week.
Media
Following the death of Sally Clark, wrongfully convicted for the death of two of her sons, and questions regarding sources of support for victims of miscarriages of justice, James Banks, Director of the RCJ Advice Bureau wrote to The Times.
Here is his letter, which can be found on “Times Online” on 12 April 2007
Sir, It is important to note that the Royal Courts of Justice Citizens Advice Bureau has run a confidential advice and support scheme for victims since 2003.
This service has been funded by the Home Office, and has assisted more than 100 victims of miscarriages of justice in this time. Unfortunately, while the work we do is greatly appreciated by our clients, it is confidential and must remain so. For many it would be inappropriate for there to be further intrusion into the lives that they are trying to restore.
As a result we have been unable to attract press, and therefore public, interest in what we are doing. We hope that this may now be rectified.
JAMES BANKS, Director, RCJ Advice Bureau
19 April 2006
Crime appeal pay-outs cut by £5m
Spending on compensation paid to those wrongly convicted of crimes in England and Wales is to be cut by £5m a year, Home Secretary Charles Clarke has said.
Those who win their appeals at the first attempt will get no compensation. Others who may have spent years in prison will see any pay-outs capped.
Individual awards will be limited to £500,000 to bring them in line with the maximum amount paid to victims.
Campaigners say the cut ignores the impact of wrongful convictions.
The Home Office said anyone who has already submitted an application for compensation would still be entitled to a payment under existing measures.
It said the highest payout given to the victim of a miscarriage of justice was £2.1m, with average compensation being about £250,000.
A discretionary compensation scheme, introduced in 1985, which paid out £2m a year would be scrapped because it had become "increasingly anomalous", Mr Clarke said.
Scrapping the scheme means people will not be allowed compensation if their cases have been quashed while going through the normal appeal process - winning at the first attempt.
They would, however, be able to apply for compensation through the civil courts.
New limitations will also be placed on claimants under a statutory scheme - which will remain in force - which currently pays out £6m a year.
The Home Office said the changes were intended to speed up payments, which currently can take between five and ten years to be finalised.
Under the proposals, the level of payments to people with previous convictions would be reduced.
"The changes I have announced today will create a fairer, simpler and speedier system for compensating miscarriages of justice," Mr Clarke said.
"These changes will save more than £5m a year which we will plough back into improving criminal justice and support for victims of crime."
Mr Clarke also announced an "urgent" ministerial review of the legal test used by the Court of Appeal to quash criminal convictions which, he said, could lead to a change in the law.
He said the review would look into "what extent an error in the trial process necessarily means a miscarriage of justice".
Mr Clarke said changing the test used by appeal judges would be a "radical" move and one option would be to allow courts to declare that a case was "not proven".
'Cynical attack'
The changes to the discretionary award procedure would rule out damages being awarded to someone like Angela Cannings, who was wrongly convicted of killing two of her sons.
She served 20 months in prison for murder before her convictions were overturned on her first appeal in 2003.
Her solicitor Bill Bache told BBC News the proposals did not recognise the impact of miscarriages of justice on people's lives.
"Simply because the perpetrator of the injustice against one group of people is the state as opposed to say a criminal in the street or something of that kind, why should there be a distinction between those two?"
Gerry Conlon, who was wrongly jailed for the 1974 Guildford pub bombings, said the changes were unacceptable.
"This is not something where you spend 15 years in jail and then walk out and continue a normal life," he told BBC News. "Lives have been ruined, lives are in tatters and we need help."
Paddy Hill, one of the Birmingham Six, who wrongly served 16 years in jail for IRA bomb attacks, said he was "very angry".
"In today's society there's every possibility to be a victim of crime but you don't expect to be a victim of miscarriage of justice," he said.
Mr Hill is a founder of the Miscarriages of Justice Organisation, a charity, dedicated to promoting changes in the legal system.
Shadow Home Secretary David Davis said both victims of crime and those who have suffered a miscarriage of justice should be compensated in a "fair fashion" that reflects the impact of their suffering.
"In the case of a miscarriage, the need is overwhelming because it is the state that instigated proceedings in the first place," he added.
Liberal Democrat home affairs spokesman Nick Clegg called on the government to retain the discretionary power to provide compensation on a case-by-case basis.
Sally Ireland from Human rights group Justice said the proposal "smacks of robbing Peter to pay Paul".
"To disqualify people who may have spent many months in custody from the scheme is a cynical attack on people who have already suffered enough at the hands of the state," she said.
The Miscarriages of Justice Support Service, run by Royal Courts of Justice Citizen Advice Bureau, has also voiced concern at the plans.
It said people cleared typically leave court with a grant of £50 and need to wait about nine months to hear if they are eligible for compensation.
"Victims... experience psychological trauma, have to rebuild their lives after losing homes, family or friends, and face severe difficulties in accessing employment either due to their mental health difficulties or the prejudice of employers. Putting an artificial cap on the amount to be paid out ignores the real life impact experienced by those suffering a miscarriage of justice," said the service's director James Banks.
Press Release taken from The Observer, Sunday August 5, 2007
Busted by the borough
Alan Woods is one of a growing number of people threatened with bankruptcy by their local authority over council tax arrears. Jill Insley reports
Local councils are forcing people into bankruptcy for failing to pay small sums of council tax. London debt advice partnership Capitalise says it is helping increasing numbers of people who are being made bankrupt by local authorities for council tax arrears.
It believes these cases reflect a surge in the number of people petitioned for bankruptcy by councils nationwide: in 1992/93, local authorities in England and Wales were the petitioners in less than 1 per cent of bankruptcy cases brought by creditors, but by 2005/06 that figure had leapt to 25 per cent.
South Londoner Alan Woods, a 61-year-old former postman who retired 12 years ago on medical grounds, was first threatened with bankruptcy by Lambeth Council in 2003 for outstanding council tax debt. Lambeth says bankruptcy proceedings are on hold while it tries to come to an agreement about repayment with Mr Woods. But Capitalise, which is helping Mr Woods dispute Lambeth's claim, says he paid off the debt three years ago and believes the local authority has mistakenly set that repayment against debts that should have been written off through time constraints.
Mr Woods, a property owner with just two years to go on his mortgage, is currently paying his monthly council tax bill, and Capitalise believes that Lambeth may actually owe him money. But if Lambeth is correct and pursues his case successfully, he could lose his home. The most recent statutory demand, for £1,408, issued to him in November, said: 'You could be made bankrupt and your property and goods taken away from you.'
The stress has caused him sleepless nights and may have contributed to a decline in his health: in May he was admitted to hospital with burst ulcers and a collapsed lung, and at one point his heart stopped beating. 'My doctor told me all the worry about going bankrupt and losing my home certainly wouldn't have helped my health,' he says.
A spokesman for Lambeth Council said: 'We're not actually seeking bankruptcy in this case of non-payment of council tax and we have been working for some time to find an alternative solution. We always work with people who are genuinely finding it hard to pay or who have built up debt but whenever there is continued non-payment it ultimately impacts on other council tax payers, and as a last resort we may have to seek recovery through court action.'
Those that are made bankrupt often have to pay charges and legal fees that far outstrip the original debt. Another Capitalise client, 64-year-old Alfred Mangion, was hit with bankruptcy charges of £18,000 after running up a council tax debt of £1,500. Mr Mangion fell behind with his council tax payments through ill health and was made bankrupt by Lambeth Council in 2003. The £18,000 fee for administration of the bankruptcy was run up by an insolvency practitioner appointed by the government Insolvency Service. 'I lost all the money my mother had left me to pass on to my children. It's left me with nothing,' he says.
Mark Allan at Capitalise says councils are being too quick to use bankruptcy as a weapon: 'Bankruptcy is a sledgehammer which increasing numbers of councils appear to be using to recoup relatively small council tax arrears. There are plenty of other ways to pursue council tax debts which don't involve this traumatic and costly process for some of the poorest people in society.'
The use of bankruptcy as a tool to recover unpaid council tax is now widespread. Joanne Hankey of the Bankruptcy Advisory Service in Hull says that, five years ago, no council was using it as an option.
'Now we see more and more people with this problems and we are aware that far more councils are jumping on the bandwagon,' she says. She believes that councils trawl through Land Registry records to see which residents are homeowners, and for how long. This enables councils to gauge how much equity the debtor is likely to have in the property and whether it is worth pursuing bankruptcy.
Twenty-four councils in the north west are using bankruptcy as an option, and Manchester City Council, which has been running a trial since January 2005, has petitioned more than 1,000 times and has made about 330 people insolvent.
Ellesmere Port and Neston Borough Council has until now preferred to place a charge on a council tax debtor's property, so the owed council tax can be reclaimed when the debtor sells his home, re-mortgages or is forced to sell by the council. But the council has just decided it will now take the bankruptcy route as well, and has placed three cases in the hands of solicitors.
Sandy Fife, head of the council's revenue units, adds: 'We have a good collection rate and we pursue all the usual forms of recovery. We only use the bankruptcy option now open to us when we have exhausted every other option.'
Hankey says it is just as easy and effective for a council to place a charge on a property and force its sale as it is to petition for someone's bankruptcy. Moreover, while her organisation has seen bankrupts having to pay charges in excess of £30,000 for a £1,200 council tax debt, it costs less than £10,000 if the charge method is used.
'We believe councils are simply trying to avoid the bad publicity of forcing the sale of someone's home. If they petition for bankruptcy, the sale is forced by the court instead. We can see no other reason why councils are doing this,' she says.
The Liberal Democrats, which support the abolition of council tax in favour of an income-based tax, oppose the use of bankruptcy to recoup council tax. Vince Cable, the party's Treasury spokesman, says: 'With more than 2 million households struggling to pay council tax, this type of action is simply unacceptable. The real problem is the unfairness of council tax, as it is completely unrelated to the ability to pay. Bankruptcy is the wrong solution to a problem of the government's own making. Making people bankrupt is not going to make an unfair tax fairer.'
