Jersey Unreported Judgments

Matrimonial - application by the father for the appointment and assistance of an amicus curiae and granting of same by the Court.

[2014]JRC021

Royal Court

(Family)

23 January 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

 

Advocate A. T. H. English for the Mother.

The Father represented himself.

judgment

the commissioner:

1.        This matter has a long and bitter history culminating in two judgments of the Royal Court issued in August of last year, in which the Court (differently constituted):-

(i)        Granted the mother's application for increased periodical payments and a lump sum (but only in part) ([2013] JRC 156 which I will refer to as the "Financial Provision judgment") and

(ii)       Declined the father's application for a residence order in respect of their child A (who was sixteen at the time) and a shared residence order in respect of their child B (who was ten at the time) ([2013] JRC 157 which I will refer to as the "Residence Order judgment"). 

2.        Three matters were left over in those judgments to be dealt with:-

(i)        The issue of costs. 

(ii)       Whether the father should be restricted from making further applications in respect of B under Article 66(8) of the Children (Jersey) Law 2002; and

(iii)      Whether the mother should be given security over the father's property in relation to the periodical payments. 

3.        Between May 2011 when the father first made an application for parental responsibility in respect of B and a residence order in respect of A, and the referral of the matter up to the Royal Court on 4th November, 2012, the father represented himself (apart from one occasion) and as stated in paragraph 5 of the Financial Provision judgment accepted that he did not conduct himself well.  In my view, it was only when he instructed Advocate Heath to represent him in both applications that proper discipline was brought to the litigation between the parties enabling the Court to proceed to trial.  

4.        Although the mother did not succeed in her application in the Financial Provision proceedings for a substantial lump sum to enable her to purchase a three-bedroom property, the father is unhappy with the outcome of the two cases and has since dispensed with the services of Advocate Heath.  He says he cannot afford to instruct another lawyer privately.  He does not accept the Court's ruling as to his financial position (that he had assets of some £1.4m and an annual income of at least £60,000) and although he has not provided a further affidavit of means, he has produced his 2012 Tax Assessment which shows an annual income of £13,370.  No further accounts for the company that operates the garage business have been produced.  Those that were produced for the Court in the Financial Provision proceedings showed a declining financial position. 

5.        The father does not qualify for Legal Aid because he owns his house and adjoining garage premises.  He informs me that a Legal Aid certificate was issued to Advocate Heath to advise on the merits of an appeal against the two decisions of the Court but whatever advice he may have received in that respect he has decided not to pursue any appeal apparently on financial grounds.  

6.        The father says he is struggling to deal with these three remaining matters on his own.  He is not an academic man and has dyslexia.  He is anxious, he says, to bring this litigation to an end and seeks the appointment of an amicus curiae to assist him.  The mother opposes such an appointment. 

7.        Mr English, for the mother, stated that the application is an attempt by the father to circumvent the Legal Aid guidelines.  He is a man, he said, of ample means well able to instruct on a private basis.  He simply refuses to because he wishes to act without limitation, to abuse the process of the Court, to further vex and oppress the mother by inter alia ensnaring the process of the action unnecessarily, thereby adding expense, trouble and delay.  To appoint an amicus curiae would amount to providing him with financial assistance with which to prolong his bitter and implacable campaign against the mother, in which the real casualties are the children.  The appointment of an amicus would be wholly contrary to the interests of the parties and the children.  Mr English pointed out that the father had previously applied to the Registrar for the appointment of an amicus curiae, which application was refused, although no reasons appear to have been given. 

8.        Mr English submitted that the application should be struck out, pursuant to Rule 6/13(1)(d) of the Royal Court Rules 2004 as an abuse of the process of the Court, or alternatively, as a chose jugée following Minories Finance Limited v Arya Holdings Limited [1994] JLR 149. 

9.        Without knowing the basis upon which the application was made to the Registrar and the reasons for refusing it, I cannot find that this application is an abuse of the Court process.  In any event, the circumstances between that application and this have undoubtedly changed.  As for the matter being chose jugée the appointment of an amicus curiae is made by the Court in order to assist it in the administration of justice and does not constitute a cause of action in the hands of any party. 

10.      Mr English made helpful submissions on the practice of this Court and of the English court in respect of the appointment of an amicus curiae.  Harman, Commissioner, in the case of In the Matter of Sinel [1999] JLR 135 drew guidance from the Canadian case of Grice v R.(3) (11 D.L.R. (2D)) at 699 on the definition of an amicus curiae:-

"An amicus curiae, properly so called, is a person or bystander, usually a lawyer, who has no interest in the proceedings and intervenes simply to call the attention of the Court to some point of law or fact which has escaped its notice."

11.      In Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at p. 266 F-G, Lord Salmon made this observation on the role of an amicus curiae:-

"I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his behalf."

12.      The assistance given by an amicus curiae to the Court is not limited solely to arguing points of law.  In Sherdley v Sherdley [1987] AC 213, the House of Lords relied on the submissions of an amicus curiae to put forward figures relating to the appellant father's financial position over the issue of maintenance payments for school fees to his children in a case where neither the mother nor the children were represented.  

13.      In Ahmed v AG [2005] JLR Note 37 an amicus curiae had been appointed to assist an appellant present his appeal in a criminal case, a role which would extend beyond the making of pure submissions on the law.  That decision of the Court of Appeal is authority for the proposition that the reasonable fees and expenses of an amicus curiae are paid out of public funds (without the necessity of a court order). 

14.      Guidance on the appointment of an amicus curiae (referred to as an Advocate to the Court) was provided to the English courts by Lord Williams (the then Attorney General) in consultation with Lord Chief Justice Woolf in a memorandum dated 19^th December, 2001, as follows:-

"(a)     A court may properly seek the assistance of an advocate to the court where the court considers that there is a danger of an important and difficult point of law being decided without the court hearing relevant argument;

(b)       The role of an advocate to the court is usually limited to providing assistance on the relevant law and its application to the facts of the case;

(c)       An advocate to the court will not normally be instructed to lead evidence, cross examine witnesses, or investigate the facts of the case, and

(d)       An advocate to the court does not represent any person."

15.      Mr English drew my attention to this part of the guidance which states:-

"in particular, it is not appropriate for the court to seek assistance from the advocate to the court simply because a defendant in criminal proceedings refuses representation."

16.      The mother contends that in this case, the father is refusing representation which he can readily afford. 

17.      This guidance sets out a number of circumstances in which it is not considered appropriate to appoint an amicus curiae, which are rooted in the, in many cases, very different practice of the English court. 

18.      In my view, this Court will wish to retain flexibility as to the circumstances in which it will appoint an amicus curiae so as to be able to administer justice in any given case and I see no reason for the Court restricting itself to only seeking assistance where a "difficult and important point of law" is in danger of being decided without hearing relevant argument.  There may well be occasions for example where as Lord Salmon put it the court requires the law to be expounded impartially or to have legal argument advanced on behalf of a litigant in person or to provide assistance to a litigant in person. 

19.      What I believe can be distilled from the authorities cited is that:-

(i)        Whilst retaining flexibility as to the circumstances in which it will appoint an amicus curiae, the Court will ordinarily appoint a lawyer for assistance on questions of law.  For these purposes and consistent with Article 15(1)(A) of the Royal Court (Jersey) Law 1948, questions of law will include questions of procedure. 

(ii)       The role of the amicus curiae so appointed is to assist the Court and he or she does not represent any person.  That assistance can be given by the amicus curiae in turn and on behalf of the Court assisting a litigant in person. 

(iii)      The amicus curiae so appointed will be paid out of public funds, and thus the cost will be a burden upon the State.  This must be taken into account by the Court when deciding whether the appointment of an amicus curiae is justified. 

(iv)      The amicus curiae should have no interest in the proceedings and it would be helpful if when appointing an amicus curiae the Court were to clarify the nature of the assistance it requires. 

20.      Turning to the facts of this case, Mr English is quite right to say that on the basis of the findings of the Court in the Financial Provision judgment, the father should be well able to procure legal representation, but in my judgment he is not making this application to avoid that cost.  

21.      Whilst the father has the capacity in law to represent himself or to instruct a lawyer, I find that he has got himself into such an emotional frame of mind over this litigation, perceiving failings if not conspiracies by all those involved, that would render any working relationship with a lawyer difficult, if not impossible.  I cannot force him to instruct a lawyer and I therefore accept that as a matter of fact he is going to represent himself.  If he does so, then it will make the administration of justice by this Court very much more difficult, although not impossible. 

22.      Where I disagree with Mr English is that the appointment of an amicus curiae will add expense, trouble and delay in this case.  Mr English was concerned that an amicus curiae, encouraged by the father, could act as lawyers may sometimes be instructed to act in commercial litigation, taking every procedural point for the very purpose of causing delay and adding expense.  That seems to me to do a disservice to the lawyer appointed as amicus curiae and to misunderstand the role.  

23.      I take the view that the appointment of an amicus curiae will greatly speed up the resolution of these remaining three issues.  I bear in mind that this litigation involves two children and the very powerful advice the Court received from the guardian Eleanor Green as to how damaging this ongoing litigation between the parents is to the children and how important it is for it to be brought to an end.  The Court envisaged these three outstanding matters being dealt with in short hearings either on the judgments being handed down or very soon thereafter and it is deeply regrettable that here we are in January 2014 and they are still to be resolved. 

24.      Therefore, on the special facts of this case, I am going to accede to the father's application and appoint an amicus curiae who has had no previous connection with the case to be nominated either by the Bâtonnier or the Deputy Judicial Greffier, whichever is more administratively appropriate. 

25.      The amicus curiae is to assist the Court in resolving these three remaining issues by:-

(i)        assisting the father on any points of law or procedure upon which he seeks assistance, both in the preparation by him of his case and the presentation by him of his case before the Court;

(ii)       at any hearing assisting the Court directly on any point of law or procedure that might properly be (and has not been) advanced by the father. 

26.      This assistance is to be given with the aim, so far as is practicable, of ensuring that these remaining three issues are dealt with expeditiously, fairly and with the minimum of delay, minimising distress to the parties. 

27.      The function of the amicus curiae is to assist the Court in the manner set out above or in such other way as the Court may approve.  For the avoidance of any doubt, the amicus curiae will not represent the father, who will continue to represent himself, preparing his own documentation and making his own submissions. 

28.      Unfortunately one of the consequences of this decision is that I must vacate 7^th February, 2014, which had been set aside to deal with the Article 66(8) application as that is too soon to allow the amicus curiae to be appointed and get into position where he or she can give assistance to the father.  The parties, together with the amicus curiae will therefore fix a new date for the hearing of that matter with the same procedural directions.  The remaining dates fixed for the hearing of the application for security and costs on 10^th and 11^th March, 2014, will remain in place with directions already given.  

29.      There will, of course, be liberty to apply. 

Authorities

I-v-J (Family) [2013] JRC 156.

I-v-J (Family) [2013] JRC 157.

Children (Jersey) Law 2002.

Royal Court Rules 2004.

Minories Finance Limited v Arya Holdings Limited [1994] JLR 149.

In the Matter of Sinel [1999] JLR 135.

Grice v R.(3) (11 D.L.R. (2D)) at 699.

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229.

Sherdley v Sherdley [1987] AC 213.

Ahmed v AG [2005] JLR Note 37.

Royal Court (Jersey) Law 1948.