Justice badly served by 'emasculation of legal aid', appeal judge says

Impossible to 'shift intransigent parties' into mediation

Sir Alan Ward (pictured), formerly a lord justice of appeal, has warned that it is impossible to force people "off the trial track onto the parallel track of mediation".

The warning comes amid concern that the legal aid cuts coming into force on Monday will lead to a big increase in the number of litigants in person and the courts will be unable to cope.

Ruling at the Court of Appeal on a dispute between two businessmen heard before his retirement in February, Sir Alan said: "The appeal would certainly never have occurred if the litigants had been represented.

"With more and more self-represented litigants, this problem is not going to go away.

"We may have to accept that we live in austere times, but as I come to the end of 18-years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid."

Sir Alan said the case "shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation.

"Both tracks are intended to meet the modern day demands of civil justice. The raison d'tre (or do I simply mean excuse?) of the Ministry of Justice for withdrawing legal aid from swathes of litigation is that mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues.

"I heartily agree with the aspiration and there are many judgments of mine saying so. But the rationale remains a pious hope when parties are unwilling even to try mediation."

Sir Alan said the trial judge "attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused".

He went on: "What, if anything, can be done about that? You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists.

"I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable."

Delivering the leading judgment in Wright v Michael Wright Supplies and Anor [2013] EWCA Civ 234, Sir Alan said: "This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance.

"Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person."

Sir Alan said the trial judge, Judge Anthony Thornton QC, had struggled "manfully, patiently, politely, carefully and conscientiously" with the case, but the appeal was based "essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence".

Sir Alan went on: "What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person."

He said judges were expected to "bring order to the chaos which litigants in person invariably - and wholly understandably - manage to create in putting forward their claims and defences.

"Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved."

Sir Alan allowed the appeal by Michael Wright Supplies. Mr Justice David Richards and Lord Justice Hughes agreed and endorsed his comments on litigants in person.

Hughes LJ added: "I also agree that the case is a good example of the way in which efforts to save money on legal representation can often end up costing everyone, and in particular the public, more rather than less."