Do barristers lie when they draft position statements and court orders?

Litigants in person often complain to me about barristers lying to the court.  They draft position statements full of lies and then after the hearing they draft court orders saying things were agreed or ordered when they weren’t.

Let’s get this straight from the outset: barristers are not allowed to lie, or to mislead the court.  What happens if they do?  Much the same as when a prime minister lies or misleads parliament it seems: very little.

Barristers seem increasingly to rename position statements as ‘case summaries’ and write pages and pages of lies.  The barrister is only repeating the instructions of their client, and an abusive or narcissistic client is likely to lie a lot.  But it’s not the job of their barrister to decide if they’re telling the truth or not, that’s for the judge to judge.  The barrister just puts forward their client’s case and provided they don’t know for a fact that anything they are saying is untrue, they can tell the court what their client has told them without misleading.  The problems with this are:

• The position statement/case summary is only done the day before or sometimes sent on the day of the hearing itself so there is no time to prepare an argument against it or reply in the other party’s own position statement
• There is a lot of evidence put into these case summaries and as far as I’m concerned this should be put into a witness statement not a position statement – the barrister really should not be giving evidence on their client’s behalf as they can’t be cross-examined about it
• The client can only be cross-examined at a contested hearing and it can take a long time in family proceedings before you get to one of those.  Meanwhile, the lies continue to stack up
• It is very difficult for a litigant in person to refute these lies.  If both parties are represented there is at least some ‘equality of arms’ where the lies are concerned, but that’s often not the case and usually the judge won’t want to hear about the lies because they’re not dealing with evidence at that hearing.

My advice to litigants in person remains the same: draft a short (3 page maximum) position statement before each hearing.  If your ex is not represented it may be helpful to the judge to write a very short summary of the facts to date, but otherwise keep your statement to what you want to happen at that hearing, and your reasons for what you’re asking for.  Judges have very little time and I regret to say that if the other party has put a long position statement in written by a barrister, theirs is more likely to be read than yours.  So keep it short and to the point.

Personally I get much more upset by what barristers put in draft orders after the hearing when it does not reflect what actually happened at the hearing.  I have always assumed this is a stunt that barristers pull on litigants in person so I was shocked when Lucy Reed (barrister and author of The Family Court without a Lawyer) told me on Twitter that they do it to other barristers too.

If both parties are represented the order is usually drafted by the applicant’s barrister but if only one party is represented their barrister will do it, whether they are the applicant or respondent.  If neither party is represented, the court will draw up the order.  If you’re a litigant in person it’s best if you can ask at the end of the hearing if the draft order can be emailed to you to check before it’s sent to the court.  Because even worse than sending you an incorrect draft is not sending it to you at all.

Barrister Jane Hayford did this in November 2018.  She sent her draft order to the court without showing the litigant in person, and she included a costs order in it: an order which she knew the judge had not made.  She didn’t quite get away with it: she was reprimanded by the Bar’s disciplinary tribunal and ordered to pay costs of £2460.  But to the Bar Standards Board, not to the litigant in person.  And not till almost two years after the event.   The costs were probably less than her brief fee for that one hearing and she is still in practice.

There was another case in 2013 which was not a family case but was between a mortgage lender and surveyors.   The case was said to be very unusual – I wish I could believe that.   The solicitors for the applicant prepared a draft order after the hearing but it was nothing like what the court had ordered.  The solicitors for the Respondent’s made lots of changes and the order went backwards and forwards between them for three months trying to reach agreement.

The judge ordered the applicants to pay the respondent’s costs of £6,925 and said they had:

“produced an order that reflected the directions that they or their clients would like to have, and not the directions that the court in fact ordered. That is wholly unacceptable: it is not just unreasonable, it is verging on the contumelious.” The Judge made clear that, “…what occurred in this case must not happen again. Solicitors and counsel are to give effect to court orders; they are not to attempt to manipulate them to their own or their client’s perceived advantage”.

So if you’re a litigant in person don’t just heave a sigh of relief that the hearing is over – make sure that you see every draft order before it’s sent to the court. Email the barrister or solicitor to ask for it if they haven’t already agreed to send it to you and go through it with a fine tooth comb (I rather like this definition:  a comb with close-set teeth used for clearing parasites or foreign matter …..).

Orders are usually in two parts, the last part containing the actual orders (eg to make a child available to see the other parent, or to pay costs) or directions (eg to file a witness statement).  Before the order there may be ‘recitals’, which are usually statements of things that were agreed or decided by the court during the hearing, eg that there are no safeguarding issues and a fact-finding hearing is not necessary.

Be very careful about what may be slid into a recital as it could have serious repercussions further down the road.  If there is anything you think wasn’t said, or anything you don’t understand, do query it with the barrister.    If you can’t agree on something in the draft order you can both write to the court about it and the judge will decide.

You’ll find more information about barristers and court orders in my book: