Courts without lawyers
Litigants in person don't represent themselves by choice. Mostly they do so either because their claim falls outside the scope of legal aid or because they cannot afford a lawyer or don't regard it as value.
Litigants in person don't represent themselves by choice. Mostly they do so either because their claim falls outside the scope of legal aid or because they cannot afford a lawyer or don't regard it as value.
The trouble for judges is that these days there are a lot more of these self-represented litigants, as they are now called. The Civil Justice Council's working group report last November acknowledged the issue as one needing urgent attention, saying such litigants would become the rule rather than the exception.
Already in civil cases 85 per cent of defendants in the county courts and 52 per cent in the High Court have no legal representation. When I spoke to District Judge Richard Chapman, the new president of the association of district judges, last week, he warned that the rise in the ceiling of small claims will make things worse. Significantly more claims would end up in the county courts, a huge number of which would involve self-represented litigants, putting the system at risk of stalling.
The resulting challenge is twofold. First: making sure the court system doesn't seize up under the flood of litigants in person, who take up a lot more of court time and resources than represented litigants. Second: what happens to the lawyers?
Richard Chapman's comments are worth pondering. The most radical suggestion is that judges should be given inquisitorial or at least interventionist powers. A change from an adversarial to an inquisitorial approach would require an amendment to the civil procedure rules. That's not out of the question but it would be a massive cultural shift. What is more likely to happen is a natural progression where judges more actively tease out information and evidence from litigants.
This could be helped by new processes such as early judicial evaluation, an approach similar to case management conference but where the judge gives an early indication of where a case is likely to go and will aim, with the parties, to get it settled rather than prepare it for a contested hearing.
But underneath this issue is the definition of and requirements for access to justice. We tend to associate it with access to a court and access to a lawyer. That was not always the case. A primitive definition would simply require that a claimant with a genuine case should be able to bring it before a person with the authority and knowledge to decide on the basis of the law applicable what is a just and fair outcome. To make a system like the justice system work, it helps to have people who understand it; this is where lawyers come in. But there is no philosophical requirement for a lawyer. The CJC report put it in these terms: 'In a common law adversarial system, most of our procedures reflect the assumption that lawyers would be involved.'
With the government pushing for mediated solutions, this leaves lawyers with a challenge. They cannot run a business without clients so will need to think about new models. Out with the traditional hourly rate and escalating cost of litigation; in with a one-off fixed fee in return for which lawyers brief clients about the legal issues in their case and equip them with the arguments and evidence the judge expects to see. Much as Chapman '“ formerly a partner with Wolverhampton firm Foster Baxter Cooksey - would like to see a return to the old-fashioned law firm, he knows this is not going to happen. Instead, he says, lawyers should think again about how they can package legal services in a way that will appeal to the new breed of litigants, helping them organise a claim and prepare it to be argued before a judge '“ the sort of service agencies provide but with a qualified lawyer giving the advice.
The socio-economic profile of litigants in person has changed; their numbers have grown and unwittingly they have created a collective challenge for the courts and for lawyers. This unplanned development could prompt a healthy and thorough rethink of the way the legal profession works. And law firms shouldn't delay taking action, because the Co-op is already thinking about it.