'We should be given inquisitorial powers'

Growing numbers of litigants in person have been steadily putting pressure on country courts around Britain, forcing district judges to be more imaginative about the way cases are handled. Budget cuts, court closures and the forthcoming rise of the ceiling for small claims are about to push yet more self-represented litigants, as they are now called, in the direction of their local courts.

Faced with such unprecedented challenges, district judges are now calling for more radical solutions. Official packs for litigants and free online resources are among some of the proposals being considered. Most controversial, however, is the suggestion that civil procedure should shift from adversarial to inquisitorial, giving judges more power to intervene in the progress of the case, says District Judge Richard Chapman, the new president of the Association of District Judges.

Already family cases involving children are causing concern as parents cannot afford private legal representation and are finding it increasingly difficult to secure legal aid.

'Family cases involving children concern the welfare of children. All other litigation is about money. Children litigation is not,' says Chapman. 'The parents have separated; they can't agree; sometimes they don't even speak to one another. But our primary concern is what the best arrangements are for the welfare of the children. These cases which will be much better served as far as the children, the parents and the judges are concerned if the parents have the assistance of lawyers.'

The rationale is clear: lawyers take clients' instructions and prepare the case in such a way that the emotion is taken out, allowing judges to focus on the issues relating to the welfare of the children.

'That's where we think lawyers are really needed,' Chapman continues. 'If the case is properly prepared, we're able to concentrate on the real issue and get to the right result much quicker and with much less

emotional agony.'

While children work is still within the scope of legal aid the gradual reduction in fees is, in some places, driving lawyers out of the market. The result, the Telford-based judge says, is that 'we've seen an increasing number of parents coming before us in Children Act cases without legal representation'.

But, for judges, legal representation plays an essential part in ensuring a smooth court process even in divorce financial remedy proceedings or other civil proceedings. Litigants without lawyers don't know what documents the judge needs to see or what evidence he needs to hear. In judicial terms, they come unprepared, extending the dispute resolution process and stretching court resources further.

Packs for litigants

Is there anything judges could realistically do? Recently the Civil Justice Council has been looking at a number of options, with a working party now considering the preparation of a pack for self-represented litigants. The pack would explain how litigants should prepare for a case, tell them what the procedures are and what they need to do when embarking on a particular type of litigation. The working party is also looking at services that could be provided online.

There are also recommendations to direct applicants to advice agencies. But, with agencies closing down as a result of budget cuts and staff not always able to assist with legal minutiae, these recommendations are likely to remain on the shelves.

On the other hand, giving judges more powers to influence the outcome of a dispute could lead to a whole new set of problems. This option is not officially on the senior judiciary's agenda but Chapman is optimistic that it will soon find its way there.

'At the moment we have an adversarial system and what a lot of us are thinking is: 'wouldn't it be a better idea if we had an inquisitorial system, so that we could speak to the claimant or applicant and say: tell me what your case is'. We could develop the case by asking questions if we need to, so that we would then have all the information we need,' he suggests. 'But at the moment, with the adversarial system, it's the parties' responsibility to put all the information before us, not ours to ask for that information.'

Already many district judges are moving towards an approach where, without being inquisitorial, the parties are gently prodded into supplying the evidence judges are expecting from them.

'We're certainly doing that with cases allocated to the small claims track, but with the £5,000 ceiling soon to go up to £10,000 this is going to embrace a huge number of claims,' Chapman says, suggesting the burden on local courts could be unsustainable.

The trouble is that a switch from an adversarial to an inquisitorial system would need to be formalised in an amendment to the Civil Procedure Rules, which is unlikely to happen at this stage. A more likely development, according to Chapman, is that an interventionist practice will naturally evolve in the county courts because it will be the only way to deal with the rise in cases resulting from the new £10,000 limit.

Eventually, this could have an influence on the way cases above that limit are handled.

'We would like to see the same sort of system that we have with the financial dispute resolution hearing, where the parties disclose all the documents they have to disclose, provide the evidence on disputed facts, and then come before the district judge,' he says. 'To the extent they can't agree outside the court building the judge will give them an informed opinion at this stage on where the case is likely to end

up. They'll go outside again and discuss on the basis of this opinion and they'll probably settle.'

While such developments could provide a near instant solution to an immediate problem, it could also create further challenges as judges getting involved in any way in settlement discussions would have to excuse themselves from the final disputed hearing. This is already the rule in family disputes, but in smaller courts, with only a handful of judges, this could mean further delays.

Which is where Chapman suggests a further option. 'Rather than change the rules to allow a more interventionist approach, we could introduce what we would call early neutral or judicial evaluation.'

Early neutral evaluation

This new process, aimed at smoothing out the court process in the way envisaged by Lord Woolf, would apply to all claims, not just those involving self-represented litigants. The parties would appear before the district judge 'at a relatively early stage'.

'We would see what we can do to help resolve the dispute '“ not mediate or assist with negotiations but simply identify the core issues,' says Chapman. 'We would look at the evidence in this respect and identify how the case needs to be prepared if it goes to a final hearing or, if the core issues are clearly defined, whether it is capable of resolution.'

Even though this sounds similar to a traditional case management conference it would differ in two ways. As the name suggests, early evaluation would take place before the judge looks at the case in detail. More significantly, the spirit of the process is to examine whether the case can be settled rather than work out the schedule for trial.

'CMCs really just set a timetable to prepare the case for trial instead of being an occasion where we look at different judicial perspectives, identify the issues and assess which way they are heading, and consider what can we do to settle the case,' he comments.

Making early evaluation an official part of the process would require the approval of the senior judiciary. It would also require detailed consideration of the implications in terms of costs to the parties and the court resources needed '“ in particular in relation to the judge in charge of the evaluation, who would then be barred from dealing with a final contested hearing.

'We manage in divorce financial proceedings to do that, so why can't we do the same in civil proceedings?'

A few years ago, Chapman continues, district judges 'flew a flag' with the senior judiciary but the idea fell on deaf ears. But times have changed. With the increase in the small claims limit and the greater encouragement to mediation, it would now be 'a natural progression that if you want to resolve a dispute without a contested hearing, then part of the process would be judicial evaluation at an early stage'.

Another proposal being considered is the roll out of the portal now used for road traffic accident claims to a range of small claims. Maybe not all of these ideas will see the light of day, but some undoubtedly will have to if the courts are to be able to deal with the growing caseload. As a possible sign of things to come, the Court of Appeal last week launched a pilot to refer all personal injury and contract claims up to £100,000 automatically to mediation.

What all these procedures have in common is that they are designed to try and get a case settled if it is possible to settle it, stopping as many of them from escalating to a disputed hearing.

'In five years, county court judges are only going to be dealing with cases with complex issues that simply cannot be resolved by any other means,' Chapman concludes.