Judges at risk of bias towards litigants in person, says Lord Woolf

The increase in sole litigants has left judges facing a 'very considerable problem', which could undermine the impartiality of the court system, Lord Woolf has said.

Speaking at Solicitors Journal Live 2016, the former Master of the Rolls spoke of the difficulties facing the judiciary when litigants in person (LIPs) come before judges.

'It's a very considerable problem for the courts because judges find it very hard to conduct cases when one side has got barristers or solicitors and the other side has not,' he said.

Since the Legal Aid, Sentencing and Punishment of Offenders Act (LAPSO) 2012 came into force, the number of LIPs has increased with the most vulnerable unable to gain access to legal services.

The former Lord Chief Justice opined that while the judge would attempt to give assistance to the litigant to 'balance the scales' between the two sides, bigger cases with a high amount of litigation can present problems.

'The judge finds increasingly he or she is drawn into the battle… If the judge does that, the impartiality of our system is absolutely undermined and the person who is unfortunate and doesn't succeed in the case is at a loss because the judge is helping the other side,' added Lord Woolf.

'It's so critically important that our courts should always be able to give the litigant who got before the judge the impression that, win or lose, they had a fair trial.'

The rise in unrepresented litigants has led to a hike in the number of McKenzie friends - the term given to those who provide assistance to LIPs in court.

Since LASPO came into force, the National Audit Office has reported a 30 per cent rise in family cases where one or both parties were not represented by a solicitor or barrister.

Lord Woolf acknowledged that there is a place for McKenzie friends despite their limited role.

'I think that the creation of the concept of McKenzie friends was an effort by the judiciary to try and accommodate the problems that are created by a person not being represented.

'I'm sure there are Mckenzie friends who provide great assistance, but within a very limited scope, to somebody who's represented,' he said.

'There are other McKenzie friends who, perhaps through no fault of their own but because of ignorance, mislead litigants, so you can't apply any particular standards.

'I regret that there is a real need for people who can't get legal representation in the conventional way to have some help and McKenzie friends provide some help.'

Last month, the Judicial Executive Board (JEB) proposed reforms to the existing guidance on McKenzie friends to help LIPs and the courts understand their role.