House of Commons - Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012

Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - Justice Contents

6 Litigants in person

90. Reducing the scope of legal aid was inevitably going to increase the number of litigants in person before the courts, even if the "behavioural change" anticipated by the Government had in fact occurred. We received evidence that there has been a significant rise in the number of self-represented litigants before the courts but even approximate numbers are difficult to determine. Figures for litigants in person are not collated in the civil courts, but the Master of the Rolls, Lord Dyson, told us that the civil courts had experienced a significant impact from a rise in litigants in person.[153] Similarly, no figures exist to show how many litigants have legal representation in tribunals, although the Senior President of Tribunals, Lord Justice Sullivan, told us that the tribunal system had been less affected than the civil courts as there had been limited legal aid funding prior to LASPO, tribunals were used to dealing with litigants in person, and the cases were, usually, more straightforward as they stemmed from a reasoned decision by a Government department.[154]

91. Figures for representation are collated for the family courts. There are, however, some issues with the collated figures as the Court Quarterly Statistics acknowledge: "The legal representation status reflects whether the applicant/respondent's legal representative has been recorded or left blank. Therefore, parties without legal representation are not necessarily self-represented."[155] In addition, even where legal representation is correctly recorded, the figures are drawn from the litigant's status at the first final order. This means the statistics do not capture litigants who may have received legal advice but not representation, have been represented earlier but are not at this stage or who have legal representation later in proceedings.[156]

92. The National Audit Office in its report, Implementing the civil legal aid reforms, found the number of cases in which neither party in a family law case had representation had increased by 18,519, around 30% of all cases.[157] In the first quarter of 2014, 80% of all private family law cases had at least one party that was not represented. In contrast, the Minister told us, however, that the number of litigants in person in private family law cases had only risen by a "small percentage" from 66% of cases in which at least one party was not represented to 74%.[158] An additional complication is that the number of cases in the family courts has dropped since the introduction of the legal aid reforms by around 40%.[159] Whatever the true figure may be, evidence we have received strongly suggests not only a significant increase in parties without legal representation but also that litigants in person may be appearing in more complicated cases or be less able to represent themselves. We consider this aspect of the changes in detail below.

93. The increase in litigants in person following the legal aid reforms was anticipated by the Government when it noted as one of the criteria for making decisions on reforming the provision of legal aid:

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94. Limited research has been carried out into litigants in person, their experience of court processes and their impact on proceedings. Prior to the introduction of LASPO, the MoJ commissioned research into the experience of litigants in person in the family courts to "inform policy and practice responses to LIPs following the legal aid changes."[161] The research team was led by Professor Liz Trinder, Professor of Socio-Legal Studies at the University of Exeter, and included Professor Rosemary Hunter and Professor Richard Moorhead. The team sent its final report to the MoJ in September 2013. The MoJ, without explanation, failed to release the report until November 2014, when it was unexpectedly published, days after we had written to the Lord Chancellor requesting sight of a copy to inform this inquiry. We later received an assurance from the Lord Chancellor that there was "no political delay" or "ministerial involvement" in publishing the report and the problem lay in "various to-ings and fro-ings between the team doing it and the analytical team on matters related to methodology and the rest".[162] The research was a considerable undertaking covering five sample courts, detailed analysis of 151 cases, interviews with all family court stakeholders including court and Cafcass staff as well at the judiciary and the litigants themselves. The limited research base on litigants in person meant much of the information it contained was unique and could not be obtained elsewhere. Its recommendations and conclusions will need cost-benefit and further policy analysis before implementation. Furthermore, the scope changes meant that the profile of litigants in person after LASPO was different from the profile when legal aid was available to those who qualified on financial grounds.

95. We are concerned that it took the Ministry of Justice over a year to publish the report on litigants in person carried out by Professor Liz Trinder and her team. The report seems to us a thoughtful and high-quality piece of work containing unique information capable of informing not only Government responses to the difficulties faced and presented by litigants in person but also those of other stakeholders, including the Judicial Working Group on Litigants in Person. The lack of availability of this report during our inquiry has adversely affected our ability to have an informed debate on this issue. Early consideration of the report could have mitigated the £3.4million knock-on costs for the courts from the rise in litigants in person identified by the National Audit Office. We deeply regret the fact it took this Committee's intervention for the Trinder report to enter the public domain. We accept the Lord Chancellor's assurance that there was no ministerial involvement in the delay but still require an explanation for it.

The impact of the rise in litigants in person on the courts

96. The removal of private family law from the scope of legal aid, except for cases involving evidence of domestic violence, was one of the most significant changes brought about by LASPO. The MoJ anticipated the reduction in legal aid would lead to "behavioural change" and potential litigants would seek other ways to resolve their problems.[163] As noted above, the NAO concluded in its report that this had been an assumption which the MoJ had no evidence to support, an issue we examine at paragraphs 155 to 158.

97. In evidence to us the Minister said: "It is important to recognise that courts were very used to dealing with litigants in person, and this is not something new..."[164] As we have noted above, there is debate between the Government and court stakeholders over how many more litigants in person the courts are seeing. We have heard evidence, however, that suggests that the 'new' litigants in person, those who would previously have qualified for means-tested legal aid, are qualitatively different from the self-represented litigants the courts dealt with prior to the legal aid reforms. The Family Law Bar Association said:

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Sir James Munby agreed:

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98. Our witnesses agreed that there has been a rise in the number of litigants in person following the removal of means-tested legal aid from family and other areas of law, although the exact numbers are difficult to ascertain. We believe, however, that it is of more significance that the rise in litigants in person constitutes at least some people who struggle to effectively present their cases, whether due to inarticulacy, poor education, lack of confidence, learning difficulties or other barriers to successful engagement with the court process. It is vital that the difficulties of such self-represented litigants are at the forefront of the minds of Ministers when developing and implementing measures to assist litigants in person.

IMPACT ON COURT RESOURCES AND PROCEEDINGS

99. The National Audit Office found in its report that the increase in litigants in person had led to an estimated £3.4million additional costs for the MoJ in the family courts alone. The NAO did not attempt to quantify additional costs arising in the civil courts due to a lack of data on the number of litigants in person appearing in those courts either before or after the reforms.[167]

100. We heard mixed evidence as to whether litigants in person increase the length of court hearings. The Magistrates' Association, among others, thought that they did because of "the need for parties to be guided through the court process. This has an effect on the estimates of court time needed to deal with cases and the basis for the allocation of resources…"[168] The MoJ, however, has recently published research indicating that the length of hearings in which self-represented litigants appear is comparable with those in which lawyers act.[169] There are a number of methodological concerns over these data, primarily focused on the fact the hearing times are drawn from estimates entered in a case management tool for court staff, not real hearing times, but the Master of the Rolls, Lord Dyson, told us that, in any event, a focus on the length of hearings was not a good indication of the impact of litigants in person on courts resources:

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He said that is was primarily lack of legal advice, rather than lack of representation, which meant that "Judges have to spend ages ploughing through page after page of applications for permission to appeal, very often in almost illegible manuscript, and they take much longer than would something equivalent from a lawyer. In fact, the likelihood is that a lawyer would not do it because they would know there was [no legal merit] in it."[171] The need for judges to ensure justice is done means they cannot rely on unrepresented litigants' conception of their cases. Sir James Munby told us: "…litigants in person, particularly in family cases, think they have a lot of good points. Most of their good points are thoroughly bad points. It is a slight exaggeration, but they have great difficulty in finding the good points. You have to go on your own search to find the good points, and that takes up a lot of time."[172] Sir James also said that "there is a lot of anecdotal material" that litigants in person led to hearings in the early stages of family cases taking longer because of the need to explain proceedings to the unrepresented litigant, although Sir James also said "I suspect there may be truth in the assertion that the final hearing is taking less time…" because "litigants in person…tend to dry up."[173]

101. Lord Dyson agreed with Sir James that hearing times are not a good indication of whether the litigant in person is able successfully to represent themselves:

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Lord Dyson told us, that while judges make all possible allowance for litigants in person, they could only go so far: "We still have an adversarial system…I suppose a judge could say, if the judge sees that there is something in the litigant in person's witness statement that is crying out for some elaboration, "Mr So-and-So, I see you say this in paragraph 25 of your statement. I wonder whether…"" but the judge ran the risk of losing the faith of the other party in the case if he or she was seen to do the opposing party's job for them.[175]

102. The Family Justice Council told us that: "The judicial members of the FJC have all experienced a much greater pressure upon HMCTS both in terms of the administrative and judicial staff. Unwilling litigants in person take more time and resource from the courts, both administrative and judicial, CAFCASS and other supporting organisations."[176] We note that recent years have seen reductions in both the opening times for court counters and the numbers of court staff and accept the evidence of the Civil Justice Council that this has "badly compromised" the role court staff can play in assisting litigants in person although "efforts to improve assistance to LiPs are increasingly being made in at least some areas thanks to the willingness of the staff involved."[177] We welcome and are grateful for efforts by court staff to assist litigants in person as much as they are able while recognising the limitations placed on those efforts by reductions in numbers of staff and the opening times of court counters.

SPECIFIC PROBLEMS ARISING FROM LITIGANTS IN PERSON IN THE COURTS

Cross-examination of a complainant by an alleged abuser in the family courts

103. Section 34 of the Youth Justice and Criminal Evidence Act 1999 bars the alleged perpetrator from cross-examining the complainant in any criminal proceeding involving a sexual offence. There is no equivalent bar in the family courts where one party alleges serious domestic violence or rape, a matter which has been the subject of significant concern to the judiciary in a number of judgments. In P v D, a father who was serving a 17 year jail sentence for repeatedly raping his wife and who, it was alleged, had also assaulted his elder daughters leading to one taking two overdoses at the age of 13, cross-examined all three women over an extended period during a hearing to decide the outcome of his application for contact with the youngest child of the family.[178] The Family Law Bar Association (FLBA) said such a case was "not uncommon."[179] Lucy Reid, a family law solicitor who has written a guidebook for litigants in person, told us: "Neither alleged victim nor alleged perpetrator is well served by having to confront one another in court and cross examine one another or be subject to cross examination from the other. The suggestion in new [Practice Direction] 12J to the [Family Procedure Rules] para. 28 that judges or magistrates might conduct cross examination on behalf of litigants is highly concerning and impractical."[180]

104. In Q v Q,[181] Sir James Munby considered the position of two men, accused of raping the mothers of their children, who were seeking contact with those children. While both men sought public funding for representation, Sir James briefly considered whether the family courts had the power to prevent alleged abusers from cross-examining their victims and concluded that the position was unclear. While the family courts probably did not have the power to prevent cross-examination of the complainant by the alleged abuser, the position of the court would change if the experience of being cross-examined by the alleged perpetrator engaged, and potentially breached, the victim's right not to be subject to degrading treatment under Article 3 of the European Convention on Human Rights or the complex rights to private and family life under Article 8 as the court is obliged to prevent such breaches.[182] Sir James also noted that the issue was one "which the Children and Vulnerable Witnesses [Judicial] Working Group…will no doubt wish to consider".[183] In evidence to us Sir James observed:

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105. This is an issue we have considered before. In our report Operation of the Family Courts in which we recommended that "the Ministry of Justice considers allowing the court to recommend that legal aid be granted to provide a lawyer to conduct the cross-examination in such cases."[185] The Government response noted that this issue was being considered by the Family Justice Review which concluded, later that year, that judges probably had sufficient safeguards to protect vulnerable witnesses[186] but "the government and the judiciary should actively consider how children and vulnerable witnesses may be protected when giving evidence in family proceedings."[187] Mr Vara, observing that the lack of a bar pre-dated the legal aid reforms said "Judges are well trained in these matters to ensure, where you have a situation of a defendant cross-examining somebody who is also a victim, that it is done appropriately and sensitively and, where necessary, those questions may even be asked by another party. There is the use of video conferencing or screens."[188] This contrasted with the view of Sir James who, while not wishing to comment further on the analysis in Q v Q detailed above, observed that analysis raised "some very obvious questions, and to some people may even suggest some answers."[189]

106. We find the President of the Family Division's judgment that the judiciary are not necessarily able to ensure the cross-examination of victims by or on behalf of alleged abusers is appropriate and sensitive more persuasive than the Minister's contention that the judiciary have sufficient training and tools at their disposal to do justice in such cases.

107. The family courts make decisions which often have life-long consequences for the children involved. The courts need the best evidence possible to make the right decisions; this will not be achieved by putting vulnerable witnesses through cross-examination by their abuser. On its own this is a powerful case for ensuring such cross-examinations do not occur and consideration of the trauma experienced by the witness in such a case strengthens it enormously. The rise in litigants in person in the family courts further strengthens the case for a statutory bar. We therefore recommend the Ministry of Justice bring forward legislation to prevent cross-examination of complainants by alleged abusers in the family courts while ensuring justice is done to all parties.

PARTIES LACKING CAPACITY

108. The courts have also struggled with cases where one party lacks the mental capacity to instruct a representative but the Official Solicitor has difficulties in representing them. In Re D (A Child) the parents of the child were seeking to have him returned to their care following removal by the local authority on the grounds that the parents' learning difficulties meant they could not care for him. The local authority wanted the child adopted. The father worked and the family lived independently, with assistance. Their income was around £35 a month over the limit for legal aid. The Official Solicitor refused an application to act for the father unless he was indemnified against an adverse costs order. The father's solicitor, who had been acting pro bono and had spent over 100 hours on applications and appeals to the Legal Aid Agency, agreed personally to indemnify the Official Solicitor.

109. In IS,[190] the Official Solicitor sought exceptional cases funding to obtain specialist immigration advice for a blind Nigerian man with learning difficulties. IS needed to regulate his immigration status, which he did not know and which may have been entirely lawful, in order to access community care as he was cognitively incapable of looking after himself. He had been surviving on small handouts from a relative and begging. The Legal Aid Agency only agreed to fund the case after it lost in the High Court.

110. It is surprising to us that cases involving adults lacking capacity in which the Official Solicitor is involved do not appear to be differentiated from other cases by the Legal Aid Agency. Such cases, by their very nature, concern some of the most vulnerable people in our society, whose impaired understanding means they are barred by law from conducting litigation without assistance. It seems to us that access to justice for such litigants requires that such cases should receive special consideration by the Legal Aid Agency as these individuals cannot access the courts without the Official Solicitor's assistance. We recommend the Legal Aid Agency adopt a policy that ensures the Official Solicitor is able to properly represent people without litigation capacity, given the consequences for access to justice for highly vulnerable individuals if he cannot do so.

LEGAL AID AGENCY REFUSAL TO PAY FOR EXPERT EVIDENCE

111. One area that has presented significant difficulties in cases involving litigants in person is the financing of expert reports in the family courts. The Consortium of Expert Witnesses summarised the problems as follows:

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In a recent case, the President of the Family Division, Sir James Munby, considered the position of the court where funding cannot be obtained for an expert report. He concluded that, as the family courts are required by statute to order expert evidence only when it is "necessary" to determine a case in the best interests of the child, if funding was refused by the Legal Aid Agency and unobtainable elsewhere, the law required that the courts bear the cost: "It is, after all, the court which, in accordance with FPR [Family Procedure Rule] 1.1, has imposed on it the duty of dealing with the case justly. And, in the final analysis, it is the court which has the duty of ensuring compliance with Articles 6 [right to a fair trial] and 8 [right to private and family life] [of the European Convention on Human Rights] in relation to the proceedings before it."[192] Sir James adjourned the case in order, amongst other reasons, for the Legal Aid Agency to think again.[193]

112. The Minister told us that:

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113. We were concerned to hear that judges in some family law cases were struggling to access the expert evidence necessary for them to determine a case fairly due to the Legal Aid Agency approach to apportionment of expert fees when only one of the parties is legally-aided. Given that family courts are required to allow expert evidence only when it is "necessary" to decide a case in the best interests of the child we believe that, if the court says that evidence is required and the non-legally aided party is not in position to pay a contribution, the Legal Aid Agency will have to take financial responsibility in order to ensure the courts are able to try the case justly.

Solutions to the impact of litigants in person on the courts

114. The Low Commission concluded that there was no silver bullet to mitigating the impact of litigants in person on the courts and to meeting the challenge of ensuring litigants in person are able effectively to access justice. The Commission concluded that a package of individually relatively small changes were required, and the evidence we have received entirely supports that conclusion.

THE GOVERNMENT'S LITIGANT IN PERSON ADVICE SCHEME

115. In October 2014, the Government announced a £2million package over the next two years to assist litigants in person, £414,000 in 2014-15 and between £1.4 million and £1.6 million in 2015-16.[195] The announcement stated that the programmes will be delivered in partnership with selected not-for-profit organisations and would include:

· increasing the number of personal support units in courts;

· funding community law centre clinics to give initial legal advice;

· improving online information for separating couples;

· funding a telephone helpline pilot for separating parents who are in dispute.

116. Lord Low of Dalston, Chair of the Low Commission, welcomed the Government's announcement but thought it likely to be limited in its effects:

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117. We welcome the announcement by the Ministry of Justice of funding to assist litigants in person. The increase in Personal Support Units in courts will help litigants get their papers in order and supply emotional support at a testing time. The funding of law clinics to give initial advice is an issue we address in depth below in Chapter 8. Even with these facilities, there will continue to be significant pressure on the courts caused by the rise in self-represented litigants and the courts will need to develop ways of dealing with that pressure. We therefore welcome the work of the Judicial Working Group on Litigants in Person.

ONE STOP LEGAL HELPLINE AND WEBSITE

118. The Low Commission recommended the creation of a one-stop national helpline for all those with legal or quasi-legal problems who could not get assistance from other helplines due to lack of expertise or lack of capacity. The helpline would have a comprehensive and up to date list of providers of legal aid services for those who qualify and would be "supported by relevant websites, including Law for Life's Advicenow website, which we consider to be the premier, most comprehensive advice website, and Citizens Advice own Adviceguide website."[197] The Commission strongly recommended the Government ensure that a comprehensive approach was taken and ensure that services were not being replicated, and noted that the MoJ had reduced its long-term funding of Advicenow (which contains both information links through to other sites) to a "one-off" basis. The Commission was unclear as to the reasons for this but noted that the Government's own website (www.gov.uk) "depends for its success…on links through to sites such as this." We also note in this context, the research by Professor Roger Smith, formerly Director of JUSTICE, who in an international review of legal information helplines found they are most useful to better-educated prospective litigants.[198]

119. The Minister did not explain why the approach to funding Advicenow had been changed other than to say "We are constantly trying to update and ensure that the facilities we have available are fit for purpose. Occasionally, we take the view that there are other measures that may be used in terms of better communication. There are procedural matters here, but, believe me, our aim is to ensure that as much information as possible is put out for the public to be able to access it as easily as possible and that it is in as user-friendly a way as is possible."[199]

120. We agree with the Low Commission that a comprehensive approach to legal information is absolutely crucial to ensuring litigants in person are able to represent themselves effectively. We note the Low Commission's conclusion that Advicenow and Adviceguide are the premier online resources and the Commission's concern that services that already exist might be replicated unless the Government took care to avoid this. We would like the Government to explain to us why it has changed its approach to funding Advicenow, what its future plans are for online advice and how it intends to ensure services are not replicated.

121. We recommend the development of a one-stop legal helpline able to divert inquirers to other services, whether online or over the telephone, or to assist with their inquiries. In particular, the helpline should be able to divert people to legal aid providers in cases where legal aid is available. This appears to us to be a cost-effective way to improve access to justice for litigants in person as well as being a significant step towards ensuring that people eligible for legal aid are able to access it.

LITIGANTS IN PERSON ASSISTANCE BY THE COURTS

122. The Civil Justice Council told us that the Judicial Working Group on Litigants in Person, which produced a comprehensive report in 2011 regularly followed up the conclusions of that report. The Council told us:

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The Council said less progress had been made in accessing mediation for litigants in person, the use of IT for initial advice, "on improved court forms, the development by the professions of accessible retail of pieces of legal advice and assistance (rather than conduct of the whole case), and clarification of the position over pro bono working by in-house counsel and legal executives."

123. The Lord Chief Justice, in a speech early last year, did not rule out the introduction of a more inquisitorial process in cases where one or both litigants were self-represented but he set out a number of questions he thought needed to be answered:

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124. A move from the current adversarial legal system to a more inquisitorial approach presents significant challenges.[202] James Sandbach, adviser to the Low Commission, said work by the Civil Justice Council found: "the main issue about moving towards an inquisitorial system would be the civil procedure rules themselves. There would need to be very different types of civil procedures, and possibly a more general rule about flexibility within those civil procedures."[203]

125. Moving to a more inquisitorial legal system for some types of case would be a seismic shift for our courts. While such a possibility should not be ruled out, it would have to be very carefully planned and implemented. We do not anticipate that this is likely to occur in the near future.

MCKENZIE FRIENDS

126. A McKenzie friend supports a litigant in person by providing moral support, taking notes, helping with case papers and (quietly) giving advice in court. A McKenzie friend does not have the right to conduct litigation or act as an advocate but the courts may, in the interests of justice, grant rights of audience to a McKenzie friend on a case-by-case basis. The Legal Services Consumer Panel, in a review of McKenzie friends, identified four different approaches to the role:

· The 'traditional' McKenzie friend, such as a family member or friend who provides a supportive presence in the courtroom and limited non-legal assistance;

· Volunteer McKenzie friends attached to an institution/charity;

· Fee-charging McKenzie friends offering the conventional limited service understood by this role;

· Fee-charging McKenzie friends offering a wider range of services including general legal advice and speaking on behalf of clients in court, where permitted.

The Legal Services Consumer Panel identified fee-charging McKenzie friends as an "emerging market" following the removal of much of civil law from the scope of legal aid.[204]

127. We heard a number of concerns about the services provided by 'professional' McKenzie friends. Nicholas Lavender QC, Chair of the Bar Council, highlighted the lack of redress for litigants if the McKenzie friend makes a mistake: "People are now starting to make a living out of providing legal advice, legal assistance and, if the court permits, legal representation…although they are not regulated; you cannot complain to the Legal Ombudsman if something goes wrong, and they are not insured."[205] Andrew Caplan, President of the Law Society, agreed and expressed concerns about the quality of the advice given by McKenzie friends: "As solicitors, we have about six years' training…[McKenzie friends] have no training..."[206] Mr Lavender also told us that the absence of a regulator meant there was no protection for litigants against "McKenzie friends with an agenda, particularly people who tend to represent one side in certain types of litigation, and who may in certain cases be more interested in pursuing their agenda than doing what is right for their "client.""[207] Steve Brookner, of the Legal Services Consumer Panel acknowledged that this was a concern, and this type of McKenzie friend could damage the litigant's case "consciously, in terms of exploiting litigants in person to pursue a political agenda, or…subconsciously by antagonising the court."[208]

128. The President of the Family Division told us that "in the areas where there is no representation, some kind of support or input is better than nothing. In my experience most McKenzie friends add value. They tend to be articulate and to have understood what the case is. Many of them have a surprisingly good grasp of the law, not just book law but how the courts work."[209] The Master of the Rolls agreed that "in principle, McKenzie friends are a good thing, provided that they are reasonable McKenzie friends." Lord Dyson emphasised, however, that further safeguards were required:

Paid professional McKenzie friends do not owe a duty to the court, and our system depends so much on the advocates having a professional duty not to mislead the court…There is no regulatory body at the moment to regulate them. There is quite a raft of issues which, if we are to go down that route, would have to be addressed.

Sir James also emphasised the use of safeguards, such as hearing directly from the litigant, even where the McKenzie friend has been given permission to address the court.[210] Steve Brookner, of the Legal Services Consumer Panel, which supports the greater use of McKenzie friends, emphasised that judges had the power to exclude disruptive McKenzie friends.[211] The Judicial Working Group on Litigants in Person is considering the role and future of McKenzie friends.[212]

129. James O'Connell of the Institute of Paralegals put the position starkly:

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Elizabeth Davies, Chair of the Legal Services Consumer Panel, said McKenzie friends were an example of litigants in person moulding the legal services market around themselves and noted: "Research by the Legal Services Board says that just 21% of people with a problem who seek advice now get it from a regulated lawyer."

130. The Legal Services Consumer Panel recommended that McKenzie friends become self-regulating, echoing the Civil Justice Council's view that there should be a code of conduct for McKenzie friends.[214] Steve Brooker told us this was to ensure this form of court assistance remained affordable:

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We heard that a group of McKenzie friends had responded to the Legal Services Consumer Panel Report by meeting to develop a code of practice and requirements such as some legal qualifications or experience and indemnity insurance for all members.[216] The Minister told us that McKenzie friends are "an issue we are looking at and monitoring" but confirmed the Government had "no plans, at present, for the regulation of McKenzie friends."[217]

131. The very wide range of roles undertaken by McKenzie friends presents challenges for any attempt at regulation. Regulation of family members or friends providing emotional support and assistance to litigants would be absurd. Regulation of McKenzie friends holding themselves out as quasi-legal advisors would protect the litigants they are advising but could be viewed as giving them an inappropriate level of authority. We are concerned that encouraging the use of McKenzie friends may in some circumstances amount to a counsel of despair: individuals who cannot afford properly regulated legal advice and feel unable to adequately put their own case could find themselves disadvantaged if relying inappropriately on people without legal qualifications. We are also concerned by the increase in the number of McKenzie friends in the courts. We recommend the Government consider and consult on whether there should be formal regulation of McKenzie friends who could be classed as engaging in professional activity, whether fee-charging or not.

UNBUNDLING

132. Unbundled services are where a lawyer provides one or more discrete pieces of legal advice, for example research or advising on merits or a particular point of law or drafting documents and negotiating with the other side, so informing the litigant and, in theory, better equipping them to conduct litigation on their own. The motivation behind unbundling is to keep the cost of litigation down while allowing self-represented litigants to access legal assistance for specific parts of litigation. While unbundling is attractive in theory in practice there are a number of difficulties. The Legal Services Consumer Panel summed up the risks of providing unbundled services as follows:

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133. Steve Brooker, of the Legal Services Consumer Panel, told us that very little was known about how unbundling works in practice but "one in five of all legal transactions currently involves at least some unbundling, mostly in probate, immigration and employment matters." While unbundling was clearly more suited to "probate" rather than "complex child custody disputes" Mr Brooker was of the view that proscribing specific types of legal work from being offered as unbundled services was not the way to protect solicitors and clients and the current approach, in which "solicitors have to consider whether the client is capable of doing legal work themselves before they agree to such arrangements" was preferable for its flexibility. Mr Brooker told us that the Legal Services Board and Legal Services Consumer Panel were planning to carry out research in this area.[219]

134. The use of unbundling to provide affordable legal services is attractive but carries a number of risks for both lawyers and clients. We look forward to the results of the Legal Services Consumer Panel research in this area.

CALIFORNIAN MODEL

135. The President of the Family Division drew our attention to the process adopted by the Californian courts to deal with litigants in person:

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Sir James told us that "they found that the cost of that to the public purse is much less than the cost of providing lawyers to individual litigants" and that the Californian judiciary has found the system works well.[221]

136. We were interested by the evidence from the President of the Family Division on the approach adopted by the Californian courts to assist litigants in person. We received this evidence relatively late in our inquiry so have been unable to investigate the system in any detail but we believe it warrants further consideration as an additional way to improve access to justice for some litigants.

Overall conclusion on litigants in person

137. The Master of the Rolls, Lord Dyson, told us "It is impossible to prove but it would be extraordinary, frankly, if there were not some cases that are decided adversely to a litigant in person which would have been decided the other way had that litigant in person been represented by a competent lawyer. It is inevitable." Lord Dyson described a case in which a litigant in person lost a case he should have won because of a technical point of law.[222] The President of the Family Division noted that, while a judge may spot a legal point, an issue of fact which may be determinative of a case was more difficult simply because if the litigant has failed to appreciate its significance it is unlikely to be mentioned in court.[223] Steve Matthews of the Magistrates' Association observed that some people would have been "put off making what may be a legitimate application because of the fact that they cannot get legal representation, have been unable to get advice and are put off by the forms and the process and so on."[224] All three witnesses said the numbers of litigants affected by the scenarios they outlined was unknowable.

138. The problems presented by litigants in person are complex. We reiterate that there is no "silver bullet" which will solve all the issues that arise, not least because litigants in person themselves are a diverse group with widely differing needs. Fundamentally, the courts need more funding to cope with the numbers of self-represented litigants appearing before them and this is an area which should attract some of the underspend from the civil legal aid budget. Only with assistance will the courts be able to ensure access to justice. It is imperative that litigants in person are given every possible assistance to make their cases clearly and effectively.

153 Q 256 Back

154 Ibid. Back

155 Court Quarterly Statistics Back

156 Ibid. Back

157 Implementing reforms to civil legal aid, NAO, HC 784, Session 14-15, November 2014, page 4 Back

158 Q 293 Back

159 See Court Quarterly Statistics 2013-14, Figure 2.1. Back

160 Ministry of Justice (LAS0073) Back

161 Litigants in person in private family law cases, Liz Trinder, Rosemary Hunter, Emma Hitchings, Joanna Miles, Richard Moorhead, Leanne Smith, Mark Sefton, Victoria Hinchly, Kay Bader and Julia Pearce, Ministry of Justice Analytical Series 2014, p1 (Trinder report) Back

162 HC (Session 2010-11) 681-II, Q 46 Back

163 Ministry of Justice (LAS0073) Back

164 Q 293 Back