I was in the Supreme Court earlier today, waiting for a judgment, whilst a judgment in a previous matter was being delivered. The appellant was a gentleman who was representing himself, and he lost. The respondent’s counsel, unsurprisingly, asked for costs. The judge indicated that there were aspects of his decision which suggested to him that a mixed costs order might be appropriate and he asked the appellant if he had any submissions in that regard.
The appellant was like a rabbit in the headlights. He stood up, but was quite unable to say anything. For about a minute (which is a long time in these circumstances) he was unable to utter a single word. He was probably trying to take in the fact that he had lost the appeal. Total brain freeze.
Wisely or otherwise, I rose from the back benches and suggested to the court that if it wished to adjourn that matter for a few minutes after delivering judgment on my own matter, I might be able to assist the court on a pro bono basis by talking to the appellant and then, if necessary, standing in as Amicus Curiae. The judge readily agreed to that suggestion. The court has very wide powers to enlist counsel as Amicus Curiae (friend of the court) whenever it thinks that an additional voice should be heard.
And so, a few minutes later I did talk both to counsel for the respondent, and also to the appellant, and explained to him that there was no point, in relation to the argument about costs, in going into why he thought the court was wrong in rejecting his appeal. I talked to him about how much time had been spent in the proceedings arguing about a particular issue which he had won (albeit that it was not of itself sufficient for him to win the appeal).
When the court resumed sitting, I did appear as Amicus Curiae, and it is the only time in my professional career that it has been necessary for me to do so. I very much doubt whether anything that I had to say went beyond what the court would itself have had in mind, but at least it restored a sort of equilibrium, and the appellant was able again to find his voice. In the end, the court did make a mixed cost award.
This was not a case in which there had been any bullying at all, either by the judge or by the respondent’s counsel, both of whom behaved impeccably. But it did emphasise how terrifying an experience court can sometimes be to litigants in person.
Years ago, I appeared as a litigant in person in matrimonial proceedings. Since I was not there as a lawyer, I turned up on the first day in mufti. I was appalled by the disrespect with which I was treated by the court staff, who had no idea that I was a lawyer. I did not make that mistake again – on the second day I appeared fully suited up and reclaimed my status. The difference in treatment was extraordinary.
I have a recollection that one Judge (I forget who) once remarked to the effect that he would rather be mugged in the Strand than have to go through the courts as a litigant in person. There is force in such a remark.
Later in the day, the appellant telephoned me to thank me for my intervention, which was nice. I rather doubt that I really made any difference to the result, save to throw the gentleman a lifeline when he thought he was drowning.