Bar Focus | Known unknowns: the impact of litigants in person

Feature | 2 May 2013

We know to expect a rise in the number of self-represented litigants and stricter adherence to processes post-LASPO but the long-term impacts can only be guessed at. Lucy Reed reports

The implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) on 1 April sadly didn't turn out to be an elaborate statutory practical joke. It's deadly serious, particularly in the field of private family law where there will be no legal aid for the vast majority of previously eligible parents, residual legal aid being available only for those victims of domestic violence who can furnish the Legal Aid Agency with one of a specified list of items of evidence of domestic abuse, and for the protective parent raising child protection concerns who can similarly obtain one of the specified documents. For the parent accused of domestic or child abuse there is nothing. In difficult cases where children are made parties to proceedings and act through a guardian, legal aid will still be available - but that is small comfort.

Government and the judiciary having finally decided what to call the numerous litigants in person who will be thronging county courts and family proceedings courts up and down the land - in March the Master of the Rolls confirmed the rumour that self-represented litigant is a fad now to be disapproved of and litigant in person is the mandatory terminology. Does the system stand ready for the post-LASPO paradigm shift?

In the tough economic climate of the past few years, lawyers, judges and court staff have all become increasingly familiar with the litigant in person, and there has been a steady trickle of appeal cases dealing with the issues raised by a lack of representation, such as the correct treatment of litigants in person and of McKenzie friends.

Under strainAfter 1 April judges, court staff, CAFCASS and the remaining lawyers will be under more pressure - it remains to be seen where the bulge will emerge when the legal aid balloon is squeezed. Will there be more appeals?

As the Lord Chief Justice observed in an address last September a judge hearing litigants in person "in stereo" is between a rock and a hard place: "So this is an extremely delicate balance, to make sure that the self-represented litigant is getting justice and doing justice to his own case, without simultaneously upsetting, and understandably upsetting, the litigant who is represented into thinking the judge has made up his mind against them Life becomes very difficult in cases where you have two self-represented litigants. The cases take much longer and they are much more difficult for the judge. The judge, contrary to some popular idea, does not know all the law. He needs help. "So yes, it seems reasonable to anticipate that some of those who feel they have been denied access to justice at first instance will attempt to pursue their arguments through the appellate courts even without representation, blissfully unaware of what is required to succeed on appeal, unable to distinguish "plainly wrong" from "something I disagree with" or of how to identify a point of law. More appeals then. And more unrepresented appellants. Of course, some will fail at the permission stage, but others may result in authorities grappling with these issues, if not resolving them.

One can also foresee that there may also be more Children Act reviews of matters previously considered, for example where a litigant in person has made a poor fist of evidencing an otherwise sound case but subsequently, with the assistance of a legal advisor, is able to present cogent evidence that warrants reconsideration of a section 8 order.

And of course in many cases the absence of any lawyer in the case will mean that the only person who will identify deficiencies in preparation or disclosure that prevent a case from being trial ready is the judge - at a hearing. No current valuation? No pension valuation? No medical evidence? No witness statement? There are likely to be many cases that involve both more and longer hearings than should be necessary, before they can be determined.

As first instance judges already find themselves dealing with more cases that are being conducted entirely without the assistance of lawyers, the balancing act of giving each case the time it requires while ensuring that each case in the list gets heard will become a more difficult feat to pull off. As judicial and court resource is spread ever thinner, there is a risk that things will go awry in more cases, that the thoroughness of the court process will be compromised in order to maintain any kind of process at all. The extent of this risk depends upon the extent to which litigants still litigate - will they (as the government hopes) be successfully diverted to alternative dispute resolution, will they give up - or will they not bother at all? Will those who do litigate do so proportionately, efficiently, with a good understanding of law and process, and without letting their emotions drive their position? Probably not.

Even if there is a drop off in the total number of applications pursued - a scenario that would indicate a profound drop off in public confidence in the justice system - it seems reasonable to assume that those appeals that do arrive on the desk of a circuit judge or the Court of Appeal are likely to encompass an increasing number of article 6 flavoured points, such as involvement of a McKenzie friend, refusal of adjournment to seek representation, curtailment of cross examination. And how will the appellate courts deal with these appeals?

The case of Re H (Children) [2012] EWCA Civ 1797 is a useful example to illustrate, particularly in the context of family justice modernisation and the drive towards more robust case management and more proportionate use of resources.

Re H was the appeal of a litigant in person father, whose application for a McKenzie friend to be permitted to assist him and for the McKenzie to be granted rights of audience were refused, on the basis of the conduct of the McKenzie friend. There was no objection to the father using a different McKenzie friend.

The conduct complained of was intimidation of the mother and the involvement of the McKenzie friend in drafting a document for use in the case. Although the father insisted he had been about 80 per cent responsible for the preparation of the document the judge said that 20 per cent involvement was "20 per cent too much" and that this had amounted to "conduct of litigation", which of course is a regulated activity and prohibited unless permission is given. The McKenzie friend was not permitted to play any further part in the hearing at all.

Knock-on effectsThe Court of Appeal declined to interfere with the judge's "rough and ready case management decision". The reasons were perfunctory but they did not have to be elaborate. The judge had correctly referred to the guidance.

A reluctance to interfere too readily with case management decisions is not novel, but what is perhaps more surprising is the apparent endorsement by the court of the judge's interpretation of the guidance and the statute underpinning it. If argument were had in the Court of Appeal as to the meaning of "conduct of litigation" it is not apparent from the judgment. While the McKenzie friend guidance makes clear that a McKenzie must not "manage litigants' cases outside court, for example by signing court documents" (my emphasis) nowhere is there a prohibition on assisting in the preparation of documents. Nor is it at all clear that such assistance amounts to the conduct of litigation, which is defined as "the right to issue proceedings to commence, prosecute and defend such proceedings; and to perform any ancillary functions in relation to proceedings (such as entering appearances to actions)". (Courts & Legal Services Act 2007).

If assistance in the drafting of documents for litigants in person amounts to conduct of litigation the entire basis of the Public Access Guidance (under which the public access bar has been operating for years) is wrong, and the bar have been conducting litigation without realising it.

There is in the case of Re H an important legal issue, but one which is subsumed by the imperative that case management is best left to the judges on the front line. We are now left in the unsatisfactory position where there is uncertainty as to the proper limits on the assistance a McKenzie can give a litigant in person, and as to when it is necessary and appropriate to apply for a right to conduct litigation - just at the point when litigants and judges most need clarity.

We can surely expect rough and ready case management as a necessary corollary of the forthcoming changes, the question is whether this will lead to more appeals and more of a rough and ready approach to appeals themselves?

There are signs that the court system is beginning to brace itself for more unrepresented appellants. The Family Procedure (Amendment) Rules 2013 (SI 530/2013), also in force on 1 April, tighten the rules on permission to appeal yet further, and empower a High Court judge or designated family judge dealing with an application for permission to appeal to refuse that permission on paper and, where they consider the appeal is totally without merit, to prevent an oral application for permission. This of course, brings things into line with the procedure for appeals to the Court of Appeal - but the timing suggests a battening down of the hatches.

Much of what I have written is, of course, speculation - one imagining of a possible future. And that is the point - LASPO is taking us into unknown territory. We know it will be different, we do not know quite how: the known unknown.

Yet, all the possible futures one can imagine have in common a justice system under increasing pressure, a system that will have to become more efficient and will have to compromise in order to maintain operations.

The scope for efficiency and the degree of compromise required are unknown, because what happens after 1 April depends on behaviour - the behaviour of those with disputes, on a complex set of interlocking factors.

What will those potential litigants do with their disputes? Nobody knows. And anyone who says otherwise is a fool.

Vol 157 no 17 30-04-13 Bar Focus

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The impact is going to be great. You may not see it, but it is actually happening as we speak. -
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