Crowther v Crowther

Judicial assistance to a litigant in person must remain consistent with a fair trial. A judge may ask questions where necessary to help an unrepresented party present or test evidence. The judge must not, without advance warning, introduce a materially different issue, conduct extensive questioning upon it, and then rely on that issue as the decisive basis for determining the case. The affected party must have a fair opportunity to adduce evidence and make submissions. Where an unfair process has affected a financial determination and the appellate material is insufficient for redetermination, the proper course is generally to allow the appeal and remit the issue for rehearing.

The parties were engaged in long-running matrimonial proceedings concerning the former matrimonial home. The property had been bought entirely with the wife’s inheritance. The husband sought its sale and an equal division of the capital, while the wife sought to remain in the property without paying him any share.

HHJ Tolson QC declined to award the husband any capital, relying substantially on concerns about whether he could live independently. Those concerns arose during extensive questioning by the judge, rather than from the wife’s case. The husband appealed, arguing that the process was unfair because he had no advance notice or proper opportunity to meet the issue with evidence and submissions. The central issue was whether the questioning had exceeded the proper role of assisting a litigant in person.

Appeal allowed and matter remitted for rehearing. Lord Justice McFarlane delivered the judgment, with Lady Justice Macur and Lord Justice Henderson agreeing.

1. The appeal turned on procedural fairness. The judge’s questioning of the husband about his ability to live independently introduced that issue for the first time. The wife confirmed that inability to live independently had not been part of her case. Her case was instead that the husband could fund independent living through council accommodation or housing benefit.
2. The court recognised the difficult balance involved where one party is represented and the other acts in person. Under section 31G(6) of the Matrimonial and Family Proceedings Act 1984, the judge may need to ask questions to assist an unrepresented party who cannot effectively examine or cross-examine a witness. That duty does not permit the judge to develop a materially different case and use it against the represented party without advance warning.
3. The questioning extended over approximately 26 pages and focused on the husband’s lifestyle, use of his wheelchair, expert evidence and ability to live alone. The first-instance judge then relied on the resulting concern as the principal reason for refusing the husband any share of the property. That made the process unfair. The court therefore did not determine the other grounds, including the arguments concerning contributions and the inherited property.
4. The Court of Appeal declined to redetermine the financial issue. The available material consisted principally of the transcript and selected statements. The parties’ cases might not have been fully presented, evidence from the husband’s parents might be relevant, and the parties’ financial circumstances might have changed since the first-instance judgment. The issue was accordingly remitted to the family court for rehearing. The court strongly indicated that the wife should receive competent legal representation and that the case appeared to justify exceptional funding.

1. Court of Appeal (Civil Division): On 9 February 2017, the appeal was allowed on procedural fairness grounds and the issue was remitted to the family court for rehearing. [2017] EWCA Civ 2698.
2. Oxford District Registry: HHJ Tolson QC’s judgment of 16 July 2015 refused to award the husband any share of the former matrimonial home.