Irene Carol Winifred Potts and Robert James Potts
| Jurisdiction | Northern Ireland |
| Court | King's Bench Division (Northern Ireland) |
| Judge | Master Bell |
| Judgment Date | 13 March 2024 |
| Neutral Citation | [2024] NIMaster 4 |
1
Neutral Citation No: [2024] NIMaster 4
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: 2024NIMaster4
ICOS No:
Delivered: 13/03/2024
IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND
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FAMILY DIVISION
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BETWEEN:
Irene Carol Winifred Potts
Petitioner;
and
Robert James Potts
Respondent.
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Miss O’Grady KC and Miss Logan (instructed by John Hoy, Son & Murphy,
Solicitors for the Petitioner)
The Respondent appeared on his own behalf
------
Master Bell
INTRODUCTION
[1] When it comes to dividing assets after divorce, some litigants decide to
appear on their own behalf. Sometimes this is based on the perception that
they cannot afford to employ a lawyer to act on their behalf and, from time to
time, that perception will be entirely correct and that decision unavoidable.
Sometimes, however, that decision to represent oneself can be very costly.
This may be one of those occasions.
[2] On the first day of hearing the husband was initially represented by Mr
Toner KC and Miss Clarke. At the opening of the hearing, however, Mr Toner
applied for leave for his instructing solicitor to come off record and he
referred me to the decision of Re TL [2007] NIFam 8, a decision by Morgan J
(as he then was) which set out the propositions which should inform the
2
approach to applications to come off record particularly where they are made
late in the day.
[3] As he was present in court, I asked the husband whether this was an
application which he consented to and he replied that it was. He stated that
he could no longer afford to retain counsel. I emphasised the desirability of
his being legally represented but he was insistent and so I reluctantly acceded
to counsel’s application. I asked the husband if he wished to appoint
alternative representation but he declined to do so,
[4] As Thorpe J observed in F v F (Ancillary Relief: Substantial Assets) [1995]
2 FLR 45, ancillary relief proceedings are not purely adversarial. Likewise, in
Prest v Prest and others [2013] 4 All ER 673 Lord Sumption said of ancillary
relief proceedings:
“… the proceedings although in form adversarial have a
substantial inquisitorial element.”
[5] Rule 2.64(5) of the Family Proceedings Rules states that at an ancillary
relief hearing the Master shall investigate the allegation and may take
evidence orally and may at any stage of the proceedings, whether before or
during the hearing, order the attendance of any person for the purpose of
being examined or cross-examined, and order the discovery and production
of any document or require further affidavits. Nevertheless, despite the use of
the word “investigate” in the Rule, there remains a significant adversarial
dimension to the proceedings.
[6] Horner J (as he then was) described the role of the judge in adversarial
proceedings in Smith and another v Black and another [2016] NICh 16:
“It is not the role of the judge to assist one side in the
common law system, even if that party has no legal
representation or legal training, either because the party
cannot afford legal assistance or cannot secure help from the
Bar's Pro Bono Unit or simply because that party does not
want any legal help. The judge has to tread carefully in the
assistance he offers to a personal litigant. For the judge to be
seen to be assisting one of the parties is to compromise his or
her neutrality and to leave the judge open to accusations of
bias. It may be difficult to draw the line over which a judge
should not step in offering assistance, but it is a line which
must be drawn if the adversarial process is not to be
subverted.”
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