‘Making the best of a bad job.’ That was the downbeat assessment of the independent judicial body, the Civil Justice Council on its own recommendations to secure access to justice for the growing section of the public that find themselves in court without a lawyer.
Commentators are predicting that the courts are going to be deluged by a new generation of litigants-on-person rebranded by the CJC as ‘self-represented litigants’. You can read about the paper here. DIY lawyers will be the ‘rule rather than the exception’, the CJC says.
The scale of the problem
- The Legal Aid, Sentencing and Punishment of Offenders Bill proposes cutting £350m from the £2.2 billion legal aid bill. This will massively increase the number of unrepresented litigants-in-person significantly. To take the area of family law, on the government’s own figures there were 53,800 cases last year where people received representation before the courts under the legal aid scheme – plus a further 211,000 family cases where people received initial advice and assistance. All family cases are to be scrapped under the legal aid scheme unless there is evidence of domestic violence.
- The courts are already reporting high rates of non-representation: according to the Ministry of Justice, almost one third of cases in the County Court (28%) involve at least one party unrepresented throughout the life of a case and close to one in five (17%) in the High Court.
- The Royal Courts of Justice’s citizens advice bureau deals with inquiries from more than 11,000 people a year (all either about to be or involved in court proceedings) and according to Alison Lamb, director of the bureau, there has been a 40% increase on in two years. This is before the cuts.
- What the CJC says: ‘Every informed prediction is that, by reason of the forthcoming reductions and changes in legal aid, the number of self-represented litigants will increase, and on a considerable scale. Such litigants will be the rule rather than the exception.’
‘The courts and tribunals exist for their users – not the other way round.’
The CJC powerfully makes the point that it isn’t good enough for politicians, the courts and lawyers to dismiss unrepresented litigants as ‘a problem with the system’. Instead, the CJC says that the ‘overwhelming majority’ were ‘legitimate users of the system’ and only a small minority were problematic or in extreme cases ‘vexatious litigants’.
The authors quote Lord Justice Carnwath, senior president of tribunals, earlier this year saying that it ‘should never be forgotten that tribunals exist for users, and not the other way round’. Or as Lord Woolf put it in his 1995 Access to Justice report: ‘Only too often the litigant in person is regarded as a problem for judges and for the court system rather that the person for whom the system of justice exists. The true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people.’
A cultural change
The CJC paper makes it abundantly clear that they fear LiPs will be abandoned by the government. ‘Even if all the recommendations we make are acted upon, they will not prevent the reality that in many situations, as a result of the reductions and changes in legal aid, there will be a denial of justice. There must be no misunderstanding about this. Put colloquially, the recommendations are about making “the best of a bad job”.’ ‘The culture shift to accommodate LiPs being “the rule rather than the exception” as the CJC report says poses a problem for the courts and their supporting administrative staff,’ comments Jeff Lampert, a former litigant in person. Lampert together with Brad Meyer have set up www.help4lips.co.uk which aims ‘to share knowledge and learning from experience between litigants-in-person to help them approach the court system more effectively and with more confidence’. Lampert and Meyer cite ‘court speak’ as a barrier for most non-lawyers and draw an analogy with utility or mobile phone bills – ‘typically presenting you with an apparently very complex set of options and so leaving you to feel more confused rather than clear about the choices you have and the implications to your life of making those choices’. ‘There is currently an increasing amount of pressure forcing the utility companies to simplify their service presentation,’ they say. ‘The CJC report excellently represents the Courts’ most recent attempt to self-regulate itself in this matter before the politicians decide to do it for them.’
Professor Richard Moorhead, professor of law at Cardiff University, has studied how litigants in person fare in the courts. He calls the paper ‘well intentioned’ with ‘some good ideas’ and ‘pretty forceful’ (‘given the CJC origins’). ‘The kind of change they advocate, which in many ways is a modest response because of the limitation on resources they acknowledge, nonetheless suggests a management task of very significant proportions,’ he says. ‘That will require leadership and energy on a scale not likely to be seen within a depleted HMCS or a discontented judiciary.’
Luca Badioli is a debt advisor at Citizens Advice and chairman of West Sussex Money Advice Group. He was consulted by the CJC. Badioli recently interviewed 20 people as part of a research project about their experiences going through the small claims track with various claims including disputes over rent arrears, recovery of debt, housing disrepair, claims arising out of car accidents as well as contractual disputes. Twice as many represented clients succeeded with their case compared to those who weren’t.
Badioli says: ‘Those clients who were represented felt that they wouldn’t have had the same outcome had they not been represented. The emotional and health effects on both groups were very similar: attending a court or tribunal is a highly stressful experience.’ Those who were unrepresented variously described the experience as ‘hell on earth’; which left them ‘very depressed and despairing’; and caused them to take time off work because their ‘health suffered’. As he puts it: ‘There is a need to empower court users and make them comfortable. There is a need for a change in culture so the lay litigant isn’t left to feel that is “us and them” and they are on some lower scale. Judges must be more proactive.’
Help4Lips was consulted by CJC. They describe the experience of unrepresented litigants thus: ‘[They] are starting litigation wholly inexperienced in litigious matters. Too frequently, due to this inexperience, they are failing in court. This can lead to resentment and a polarisation of issues. They frequently feel the whole process is against them. … They need to recognise at the earliest possible time that the system, the judiciary and the courts service attempt to be transparently even-handed. However they also need to recognise that the opposition is taught to be adversarial in order to win.’
The CJC make 10 recommendations:
- Whilst a new information system was NOT needed, there should be a ‘sorting out’ of existing guidance and an ensuring of better access to that guidance;
- It was not enough to ‘just leave’ technology to provide an answer but that there was a need to involved ‘human assistance’;
- There was need for a ‘systematic review’ of all court leaflets and forms;
- The role of judges was ‘crucial’ and, in particular, there was a need for greater judicial case management;
- There was a need for greater transparency and confidence about what can be expected of judges, court staff, lawyers and McKenzie friends;
- The Personal Support Unit (which provides practical and emotional but not legal support) must be extended;
- Advice agencies faced huge challenges but were ‘more essential than ever’ and must be supported;
- Regulation must ‘facilitate affordable access to lawyers for discrete pieces of advice rather than the whole case’;
- There was a need for concerted leader leadership over pro bono advice services;
- Mediation needed to be better understood by all participants of the civil justice system.
Separately, the CJC noted that public legal education was ‘the true starting point for helping the public and thereby those who could become self-represented litigants’. PLE is a term that applies to the disparate collection of activities that provides ordinary people with an awareness and understanding of their rights together with the confidence and skill to assert them if needed. As part of the Justice Gap series, we will be publishing a series of essays calling for a fresh impetus to the debate over the future of PLE in light of the legal aid crisis. In light of the scale of the cuts, ministers need to take a strategic approach to developing that capability. One positive (and low cost) idea in the CJC paper is to use court forms as a way of alerting prospective DIY litigants to the potentially huge costs of litigation. As the CJC puts it: ‘There is much to be said for the warnings to be equivalent to the warnings on mortgage advertisements and documentation to the effect that a “home is at risk” if mortgage payments are not maintained.’
Jeff Lampert and Brad Meyer also welcome the CJC’s call for legal services to be tailored to the needs of those who can’t afford a lawyer for the life of a case. They argue that high street solicitor ‘model’ is ‘broken and in need of re-design’. ‘Making unbundled, fixed-price services available to educated buyers – litigants-in-person- will have a place in its re-design,’ they say. Most firms insist on being paid an hourly rate (£250 for a reasonably experienced solicitor). The CJC cites the example of Bristol Law Shop which charges £7 for five minutes of advice. This has been going for 15 years and the model has yet to be replicated.
It is depressing but not surprising that the coalition government has been swiftly moving in the opposite direction on most of those CJC recommendations: by destablising the not-for profit legal sector (some 18 out of 56 law centres look set to close their doors as a result of the funding crisis) and pulling the plug on both the National Mediation Helpline and the ADRNow website which both directed the public towards the possibility of out of court settlement. Ministers have also withdrawn funding from PLEnet which promoted public legal education projects after three years.
If you are thinking of a legal action, Luca Badioli advises prospective litigants-in-person to ask four questions before embarking on action:
- Do I have a good chance of winning?
- If I win, can the other party pay?
- Is this worth my time and money?
- Have I done everything to try to avoid proceedings?
People contemplating bringing a legal action need a reality check – and you can get that at a citizens’ advice bureau or law centre. You need an objective view as to whether your case has merit and whether it will be worth your effort in terms money and time. There should be a health warning issued to all people before they bring legal actions concerning their exposure to costs. Read this.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award