High Court judgement highlights the gaping hole left by legal aid cull

The recent judgement of Mr Justice Holman in the matter of Welch v Welch (2015) EWHC 2622 (Fam) is an extraordinary (and at times, dare I say even comical) read for a raft of reasons:

  • Holman J clarified that a judge is not expected to recuse himself/herself simply because they know the family lawyer(s) acting for either of the parties (perhaps like me you have had many a suspicious client raise this query – this is an unequivocal judgement to waive before them!)
  • Holman J made clear what does not constitute a Barder event
  • The solicitor with conduct was called as a witness on the issue of her client’s alleged non-disclosure, and was cross-examined by a litigant in person
  • The case is a salutary tale to family practitioners not to act for clients without receiving payment on account, and not to rely on Sears Tooth arrangements
  • Holman J clarified, obiter, that costs awards should not eat into resources required to meet basic needs, no matter how unreasonably a party has acted, and even when that party has a civil restraint order made against them!
  • Costs orders in family proceedings remain a frustrating and at times unjust aspect of this area of law, to the extent that even when an extended civil restraint order was deemed necessary against Mrs Welch, Mr Welch was still not awarded the repayment of his costs incurred defending her latest unmerited application

However, the most poignant message from the Judgement is in Holman J’s closing words…

It is, I am afraid, a problem which is increasingly faced now that litigants in person are denied any publicly-funded legal advice. They do their very best, and undoubtedly Mrs Welch has become a very proficient lawyer herself, but they are denied the advantage of objective legal advice. That has the effect that far too often we are now faced with days like yesterday and today in court. It is largely the responsibility of Mrs Welch, and in the words of District Judge Hess, her obsessive and irrational approach to these proceedings, but it may also be in part due to the denial to her of any publicly-funded legal advice.