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Tuesday, 1 March 2011

Litigants in person

Published on Halsbury's Law Exchange here.

It was once said that justice, like the Ritz, is open to all. That was a variation on the old joke about French law being equal because it prevents the rich as well as the poor from sleeping under bridges. Since the advent of public funding, it has been more common to say that justice is only available to the very rich or the very poor ...

Whatever the truth of any of that, there is no doubt that any restrictions on legal aid (as presently being considered) will have some effect on access to justice. A second consequence, however, is that there are likely to be significantly more litigants in person. According to the BBC:

The Judges' Council, which is chaired by Lord Igor Judge, the head of the judiciary, has warned that government plans to remove £350m from the legal aid budget could result in a surge of amateur barristers clogging up the system.

The Ministry of Justice (MoJ) insists there is "little substantive evidence" that litigants in person delay proceedings and that any increase should not significantly impact proceedings.

The MoJ’s insistence deserves a response. The reason there is “little substantive evidence” is that properly researched statistics would be hard to come by. One would need to start by dividing hearings into those with the same cause of action – such as, for example, cases under s 288 of the Town and Country Planning Act 1990, ancillary relief cases, child custody hearings, road traffic prosecutions – and then compare the average length of hearings where both sides, one side or neither were represented. Then one would have to consider the factual and legal complexity of each individual case – which might differ significantly even between different examples of the same cause of action. Next one would have to take account of the different judges involved: some naturally progress cases quicker than others. To an extent that is dependent on the degree of familiarity the judge has with the particular subject matter – few judges could deal as expeditiously with planning cases as Sullivan LJ, for example.

One can therefore see the difficulty in compiling objective statistics simply from the duration of particular hearings. And the absence of such statistics on the subject means that there is equally little substantive evidence both for and against the MoJ’s proposition.

Having said that, however, the Judges’ Council is surely in an authoritative position to make at least a broadly accurate generalisation, given that it is able to draw upon the collective experience of those who actually conduct all the hearings. Its conclusion that hearings involving one unrepresented party almost always take longer than when both are represented is correct in the experience of the All England Law Reporters, who have covered countless hearings in the courts of record involving both represented and unrepresented parties over the years. There are several reasons why.

First, it is generally necessary for the litigant to be assisted with court procedure. Secondly, few have the skill of distilling relevant from irrelevant issues. Thirdly, even highly educated litigants in person are generally quite out of their depth in discussing any relevant authorities, statutes or points of principle, which therefore have to be explained at least to some extent (and even then the full significance is often not grasped). Fourthly, it is the duty of the other side’s barrister to draw all relevant authorities to the court’s attention and identify arguable points which the litigant might have missed, and this usually takes longer as the judge will want to be satisfied that that duty has been discharged. (It may also add to the (often unrecoverable) costs of the other side). Fifthly, judgments often take longer as the judges feel obliged to include more detail, with little homilies explaining points of law which ordinarily would not be necessary.

The Judges' Council's point is therefore sound. The point remains secondary, however, to the fundamental point of justice being done – and equally being seen to be done. If there is a basic inequality between representation of the parties, one is entitled to question whether the standard of the trial process will always be maintained. Law is a learned profession, as with, say, medicine or architecture, and it is idle to expect that a lay person could undertake even a straightforward medical diagnosis or design a simple building as well as a professional. It is equally expecting too much of lay people to assume they can competently represent themselves in court.

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