Case note: Ezuego v Hara — Transferring property injunction proceedings to the family court
In this guest post solicitor-advocate David Rosen records a recent County Court ruling that the appropriate court in which to consider an injunction application dealing with matrimonial property is the Family Court, and recounts his experience of dealing with a litigant in person appearing via videolink. … Continue reading
Kingsley Ezuego v Sawako Hara (unreported) 6 February 2019 before HHJ Saunders at the County Court at Central London
Representation:
David Rosen, Solicitor-Advocate of Darlingtons Solicitors LLP for respondent wife
Kingsley Ezuego, husband as litigant-in-person (‘LIP’) via video link
Brief summary of the case in context with other proceedings
Ezuego had brought an injunction against his wife, Hara, not to dispose of or otherwise deal with the family home or a commercial property. He brought that injunction in the County Court after divorce proceedings had been issued. Both the family home and the commercial property would be considered as part of the family estate and an issue was raised as to whether the County Court should continue to consider the issues or whether it was more appropriate for the Family Courts to consider these matters in the context of Family Financial proceedings, which were live and running in parallel to the County Court proceedings.
Ezuego complained that since he appeared by video link (having been imprisoned for contempt of court in relation to earlier proceedings) he did not have any papers with him and he would not have a fair trial. The judge accepted and agreed. Balancing the needs and requirements of both parties, however, (Ezuego sought to make his injunction final, and Hara sought to discharge the injunction), the matter was not heard but instead would be transferred to the Family Court at a later date.
All relevant papers would be sent to Ezuego so that he was ready to continue with his application and would have ample time to prepare on another day.
Judge Saunders held that the injunction in the county court was a stand-alone injunction and that, since it related to the family home and a commercial property which formed part of the matrimonial estate to be considered, the appropriate forum for such matters to be heard having regard to the balancing of needs and resources of husband and wife, would be subject to section 25 of the Matrimonial Causes act 1973.
Family Courts were seized of this matter and had inherent jurisdiction in relation to injunctions relating to land which formed part of the matrimonial estate. Section 37(2) of the 1973 Act did not allow for free standing applications and an application for avoidance of disposition of land must fall to the Family Courts to decide.
Comment
The case settles a point of practice which will be of interest to family practitioners. But it also offers an opportunity to reflect on some of the difficulties of litigating in the current climate, where lack of legal aid has forced many litigants to represent themselves, and the difficulty of their doing so via videolink.
Video links
Advantages:
- A production order was not necessary and time and costs were not wasted for the courts to allow a party to attend;
- The video was clear both in sight and sound so that the judge and advocates could all see each other when speaking;
- Technology has come a long way to ensure good quality and connections
- Everything is recorded and the microphones are very sensitive so any mutterings or comments made whether openly or not can be heard (good and bad point)
Disadvantages:
- Once the connection is made, usually before the opposing/other party enters the court room, the person appearing via video link can talk away and do as they wish.
- It is difficult for an advocate wishing to speak, to stop someone on video link to interrupt or make a point because when speaking a judge can miss reactions because it is difficult to look at a screen to the side of a court room and look in front of the Judge in the court room.
- A LIP usually is unaware of court protocol and times when and when not to speak, and with video links it is easily done whether intended or otherwise to speak over the judge or the other side making a point.
LIPs in court
It is the way of the dystopian world in which we live that access to public legal funding is so restricted that people who cannot afford representation have no choice but to represent themselves.
All judges where I have attended with a litigant in person (LIP) as an opponent have been incredibly patient and courteous; have given them the benefit of the doubt in terms of procedures and timings and deadlines; and will give them additional time to make whatever points they wish to raise whether relevant or not to the issues being considered at that particular point in time.
Advocates facing LIPs need to remember that any case will be personal to a LIP and they are likely to be more subjective and highly emotional. That means that a LIP is more likely than a professional advocate to express any number of emotions at any one time, including shouting, screaming, crying, silence, and talking too much. Advocates need to also be patient with a LIP and not to interrupt when they are going ‘off piste’.
The courts dealing with LIPs generally
More time is afforded to a LIP in court. Therefore more court time is needed to allow additional time for a LIP to present their case and to consider their paperwork. This in turn drains resources and creates inefficiency within the court system. This has a knock-on effect to other cases and clogs up court resources.
There are fantastic resources available to LIPs including pro bono surgeries, lawyers who will give free advice, and organisations like CAB (Citizens Advice), and PSU (Personal Support Unit). Sometimes management of emotional intelligence just by having someone else come along, allows a LIP to better present their cases.
Personally, I am in favour of a policy of finding solutions to help the overwhelming and growing numbers of LIPs rather than discouraging them. Access to justice is supposed to be for everyone including the right to a fair trial. I would hasten to suggest to the Law Society, the Solicitors Regulation Authority (SRA), and to the Bar Council and Bar Standards Board (BSB), that they make it mandatory for all legal practitioners as part of their continuing professional development to allot a minimum amount of time to assist those who cannot otherwise afford legal advice or assistance even to just complete a form.
Professor David J Rosen is a Solicitor-Advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is an honorary professor of Law where he lectures at Brunel University regularly on practical legal skills and advocacy amongst other subjects and set up and runs a Pro Bono surgery with the students in Term 2 each year. The Pro Bono surgery has been in existence for eight years running and has assisted many thousands of people.
He can be contacted via LinkedIn and on Twitter @ProfDavidRosen