Without representation, by choice or otherwise

The Ministry of Justice published its latest quarterly statistics bulletin on 15 December 2016, providing the most recent analysis of ‘activity in the family courts of England and Wales’.

Some of the most interesting elements of the bulletin are the figures on the legal representation of parties in family-related court cases, reflecting the trends in cases where only applicants, only respondents, both, or neither party had legal representation during their case.

The explanation around what ‘legal representation’ really meant should be noted, in that the statistics clarified ‘for over half of divorce cases not involving financial remedies disposed, neither party had legal representation. However, further analysis shows that these were uncontested cases and almost all of them did not have a single hearing. Therefore, parties recorded as without legal representation are not necessarily self-representing litigants in person.’

What does this clarification mean though? In reality, contested hearing or not, these divorcing spouses are choosing not to instruct a solicitor where they had done before. They are without representation, by choice or otherwise, whether or not they are actually conducting their own court litigation. It is impossible to measure whether such individuals are disadvantaged or not, although it is arguable that in large numbers of cases this is inevitable.

The bulletin made the obvious point that practitioners are fully aware of, namely that ‘the removal of legal aid for many private law cases has resulted in a change in the pattern of legal representation’.

The Master of the Rolls, Sir Terence Etherton, very recently suggested that ‘the combination of an oversupply of law graduates… and the growing number of litigants in person offers an opportunity to enhance access to justice while helping students in practice’. While seemingly an obvious pairing in theory, and one which undoubtedly would benefit those individuals who fall within the legal aid gap, it does not serve to address the overpopulation problem in a profession which is simultaneously being less utilised.

A further consequence of LASPO is the issue which leads to continued complaints from the judiciary – namely that the increase of LiPs is taking up valuable court time and money. In a recent Court of Appeal hearing, where both parties were LiPs, Lady Justice King commented that ‘a torrent of informal, unfocused emails to court staff and judges over the course of the case had… strained the limited time and resources available for the dispute’.

These issues are therefore separate consequences of the government’s decisions on this issue, although at the same time they are of course inextricably interlinked with one another. The legal aid cuts have been, and continue to be, damaging to all those involved: the vulnerable litigants, and the family law practitioners, as well as the courts and the judiciary.

Furthermore, with criticisms being levelled by all of those affected at one another in the aftermath of the legislative decision, it would seem we are trapped in a circular situation where everyone is to blame apart from, seemingly, the legislators themselves.

Pippa Allsop is an associate at Michelmores

@MichelmoresLaw https://www.michelmores.com