Some thoughts on Judge empathy in possession claims and James Robertson Justice

Fiction v Reality

Ever since I was a kid I’ve had a soft spot for the old British film actor James Robertson Justice.

A routine presence in countless lame comedies but he is always a reason to watch, as he repeatedly steals the show with his blustering, rude and intimidating characters. The 1961 film ‘Very Important Person’ being arguably his finest hour in that respect.

In a recent appearance in a north London county court, I decided that I needed to catch one of his films again if only to remind myself that his character is actually a comedy creation and not the reality of the terrifying district judge I and the tenant had to endure.

Admittedly the judge didn’t have JRJ’s girth or beard, in fact, to be honest, it wasn’t even a man but Jamie’s essence had been spiritually channelled into this human being, judging by the way she belittled and spoke down to the pair of us.

After repping in over 400 repossession cases (I stopped counting in 2015) I have developed the hide of a Rhino when it comes to judges with attitude, able to shrug off even the most intimidating attacks but my poor woman was almost reduced to tears.

Despite actually winning the case I spent 20 minutes outside the court with her afterwards trying to calm her down and explain what had just happened, in an attempt to persuade her that her home had been saved and that she didn’t need to fire-bomb the judge’s car.

Why do some judges do this?

Courts are intimidating places to be at the best of times and for many people, its still just posh people talking about stuff normal people don’t understand.

Many times I sit in court with a tenant while the judge and lawyer for the other side engage in a long conversation consisting entirely of legal jargon, while the poor respondent constantly whispers in my ear, asking what is going on.

A testament to the impenetrable nature of court language and procedures and the level of intimidation that still resides in this most class-ridden and authoritarian of processes.

On the very odd occasion, I have had DJ’s waive their hand at me and tell the claimant to shut up and speak directly and humanly to the person trying to save their home and it’s lovely to see.

They acknowledge the emotional reaction of the person and take pains to explain clearly what is being considered.

If a few can do it why not the rest?

The cases where the litigant represents themselves might not take four times as long, as recent MoJ figures claim and people might then leave court understanding what had just happened and that justice had indeed been served, instead of simply feeling like an actor with a walk-on part in their own life.

There has been a recent consideration of what improvements could be made to improve the court service in housing cases.

The two penneth I stuck in, related to comments on the user experiences of ordinary people involved in the court process.

I started doing court work before the Wolfe reforms in the late 1990s when they got rid of wigs and gowns in the county court and stopped people unrelated to the case sitting in on hearings as an alternative to boredom or lack of seats in the waiting area.

This was supposed to improve people’s abilities to use the courts in a user-friendly way but it did nothing of the kind. The costumes may have gone but the medieval, public school attitudes remained.

I have friends who train doctors in the NHS on improving their bedside manner, because the various health trusts have concerns about the same problems where patients don’t understand the medical jargon and sometimes where little empathy is shown by stressed out, overworked doctors.  So why not judges?

Back to the fiction…

There is a classic scene in the otherwise god-awful film ‘Doctor in the House’, where James Robertson Justice’s character Sir Lancelot Spratt is explaining an upcoming operation to a group of students by drawing a red line down the torso of a poor patient, demonstrating how he intends to open him up from stem to stern like a fish.

When the terrified man protests, Sir Lancelot says dismissively:

“Now just lay down and relax, this has nothing to do with you my man”.

Great as a line in a comedy but not when this is still the attitude of so many judges and lawyers.

It would be nice if county court judges were similarly trained, like doctors,  to understand the emotional turmoil faced by a mortgagor or tenant in difficulty, while a couple of well educated, well-spoken people speak over them, deciding the fate of their family home, in a conversation they find incomprehensible.

Too few goods ones

I have known and appeared in front of many wonderful judges, who will explore every possibility before they consider repossession but there are still far too many out there for whom the process is an authoritarian and bureaucratic one and which in their eyes, like Lancelot Spratt’s patient, has little to do with the claimant.

County courts exist to serve the people of the community where it is located and the judiciary, although effectively being servants of the crown should wake up and acknowledge that this is not 1790 and they don’t have the power to send someone to the colonies for stealing bread any more, much as some might like to.

Thanks to cuts in legal aid there are more litigants in person than ever before. Amongst Safer Renting’s client group eligibility for legal aid is not, in fact, the problem, the only reason we get involved in such matters is that our clients can’t find legal aid housing lawyers with the capacity to take on a case.

Reality must prevail

Whilst judges are also openly critical of legal aid cuts and a diminishing loss of access to justice, it seems mainly to be in an abstract way. They need to come down a bit and see it in personal terms, accepting that more people representing themselves is a modern reality and that instead of playing ‘Hanging Judge Jefferies’ what the public needs is individual judges working as human beings, sympathetic to the fact that law is impenetrable and confusing to 99% of the population.

Repossession cases should not be an academic legal argument between two posh people, whilst standing in front of them is a terrified and confused individual about to lose their home.

It is 2019, the civil justice system is going down the toilet and there is no place for James Robertson Justice outside of a 1950s comedy film.