Counsel’s opinion as ‘evidence’
How often has an advocate at a final hearing had to remind the court and his or her opponent that what is in a document is not evidence, unless the document is proved or it is in the bundle and accepted as evidence? And then what of assertions in skeleton arguments which are not based on evidence before the court?
A third stage, and one worse still, was the basis of the appeal in AZ v BZ (financial remedies appeal)  EWFC 28 (22 May 2020) where in the Family Court in Oxford Her Honour Judge Vincent allowed an appeal against a district judge’s order, where the district judge had treated as evidence of the wife’s current earning capacity a five-year old counsel’s opinion which had been prepared for a much earlier damages and loss of earning claim. On the basis of this opinion and of other factors – including that most of the wife’s damages had been spent – the district judge had awarded the wife most of the couple’s assets.
Her Honour Judge Vincent commented on the counsel’s opinion:
' ... The document was neither expert opinion, nor a witness statement of fact. The husband had no opportunity to challenge its contents by asking questions of its author, whose identity was unknown. He had no opportunity to respond… or to submit other relevant evidence to the Court in response. The twelve-page extract sets out each of the heads of loss claimed in the schedule. The concluding section of the note, presumably giving advice as to what might be realistic to expect being awarded under each of these heads of loss, is missing. The advice was prepared about five years before the final hearing, so it is questionable how relevant it was to the wife’s current financial position. The best that can be said of it is that it provides some evidence of the way the damages claim was formulated.'
The difficulty, said the judge, was that the district judge had had no ‘information from the wife about what she might expect to earn in the future as a qualified counsellor’ which was the occupation she expected to follow. Further the judge could not see ‘upon what evidence the judge relied to find that the wife would be unable to increase her working hours in the future’ and she claimed. The court was provided with no medical evidence about this. The fact of no evidence as to future earnings and the counsel’s opinion from five years earlier, seems in some way, to have been conflated by the district judge to provide evidence of future earnings now.
On this basis, said HHJ Vincent:
' … It appears that the judge relied substantially upon the section of counsel’s advice to make the findings she did about the level of the wife’s future financial need. In my judgment she was wrong to do so.'
She allowed the husband’s appeal, and ordered that a property in Spain owned by the parties should be sold and the proceeds divided between them.
Evidence of litigant in person
The wife was in person. The husband was represented. The judge was referred to the recent Barton v Wright Hassall LLP  UKSC 12,  1 WLR 1119 in which the Supreme Court considered the extent to which a court should give latitude to a litigant in person who failed to comply with the rules. Lord Sumption said:
'... Some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court.… The rules provide a framework with which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his unrepresented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights … Unless the rules and practice direction are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.'
With respect to the judge, the Barton case and the subject of compliance with the rules raises a slightly different point to this case. In AZ v BZ the court was concerned with relevant evidence on which a court is required to be satisfied by statute and to dispose of the case.
On the importance of evidence to prove an application – in that particular case, it was housing needs – a comment from Ormrod LJ in the early life of the new 1973 legislation in Martin (BH) v Martin (D)  Fam 12 at 20,  3 WLR 101 bears repetition:
Secondly, whenever it is to be argued that the wife could find alternative accommodation for herself out of her share of the equity, whatever that may be, or obtain council accommodation, there should be evidence put before the court to that effect. The unsupported assertions and speculations which are made in the course of argument in these cases are not satisfactory. It means that the court has to use its own imprecise knowledge of the property market and may well make mistakes. So if it is going to be said that the wife could get alternative accommodation, let there be some evidence to that effect. Otherwise it will have to be assumed that it is not possible.
Whether or not a party is a litigant in person, the court must have evidence on which to base its findings. Ormrod LJ’s comments were approved 25 years later by the House of Lords in Piglowska v Piglowski  UKHL 27,  1 WLR 1360 at 1370  2 FLR 763 by Lord Hoffmann. Perhaps an approach to evidence on which the court can rely can be found somewhere between Lord Hoffmann’s and Lord Sumption’s views of the way forward so that a judge can fairly deal with a case on properly proved evidence.