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:
the litigant's ability to present their own case:
considerations included the type of forum in which the proceedings
are held, whether they are inquisitorial or adversarial, whether
litigants bringing proceedings were likely to be from a predominantly
physically or emotionally vulnerable group (for example, as a
result of their age, disability or the traumatising circumstances
in which the proceedings are being brought).[160]
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:
pre LASPO LiPs
were more likely to be employed
people with some level of ability to articulate issues and engage
in the court process. The removal from scope of all private family
cases
has left those who are least able to represent themselves
having to engage in the court process without the benefit of any
legal advice. The MoJ naively assumed that the system could absorb
more LiPs without adverse effects as long as more information
was made available. This belief fails to recognise the limitations
of the litigants involved
[165]
Sir James Munby agreed:
Previously we had a lot of litigants in person
who were there through choice. They tended to be people who had
a particular point of view, but who understood the case, were
articulate and had the confidence to appear in court. We now have
a lot of litigants in person who are there not through choice
and who lack all those characteristics
[166]
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:
The problem comes not at the hearing stage, but
at the pre-hearing stage and the case management conference stage
when the judge first gets to grips with the case, tries to knock
it into shape, see what the issues are, and give directions for
the efficient and proportionate conduct of the litigation. It
is at that stage where, if you have lawyers present, they are
used to narrowing the issues, and they do.[170]
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:
I am afraid, that very often litigants in person
are totally overawed by the experience and they just dry up
They
put in their witness statement and their case, and you say, "Now,
Mr So-and-So, what do you want to add?" They just say, "Well,
nothing." They just freeze, frankly. Of course, there are
some litigants in person who will go on talking for ever, but
if you balance the two it does not surprise me, if the evidence
shows this, that overall the length of a hearing with a litigant
in person is no greater than with lawyers.[174]
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:
The discrepancy between the family system and
the criminal system that I identified is the result of parliamentary
decisions, because Parliament legislated
in relation to the
criminal courts but did not legislate similarly in relation to
the family courts... It is essentially a matter of policy to be
determined by Parliament.[184]
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:
In [private family law] cases where the parents
are litigants in person, they have neither the funds nor the necessary
knowledge to instruct expert clinicians. In cases where some of
the parties are legally aided, which may include the appointment
of a Children's Guardian, the Legal Aid Agency refuses to allow
the cost of an expert instruction to be borne by the publicly
funded parties alone. Since the litigant(s) in person cannot pay
a share of the fee, instruction becomes impossible.[191]
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:
The Legal Aid Agency is bound by legislation
and case law. It has its rules. Where people fit the criteria,
funding is available
This is taxpayers' money. We have a
duty to the taxpayer to ensure that that money is properly utilised
according to the rules as prescribed by Parliament and case law
It
cannot be right that, when you have two people who are both going
to benefit in a particular case from an expert report, there is
an expectation that only the legal aided party will pick up the
full cost of the expert report. There has to be an element of
apportionment.[194]
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:
The scheme relies heavily on a more strategic
use of pro bono lawyers, and building the capacity of personal
support units that can support people but cannot assist them in
establishing and arguing their rights or advise them on the merits
of their case
The scheme would be more valuable if it could
recruit and retain a specialist back-up resource.[196]
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:
good progress has been made with high quality,
accessible, information and guidance, with a considerably increased
focus from all quarters on changes required to meet the needs
of LiPs as major users, with coordinated developments in pro bono
provision and in access to Personal Support Units, with access
to appeals after a refusal of permission to appeal on paper, and
with debate about both the involvement of McKenzie friends (including
appreciation of the possibility of different approaches in different
situations) and the use of a more investigatory or inquisitorial
approach in some cases where LiPs are involved.[200]
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:
What effect would that have on the ability to
give other cases their fair share of the court's time and resources?
What consequences would it bring to, for instance, the efficient
use of judicial time? Would an increased workload mean we would
need more judges, or need to introduce a new cadre of junior judges?
What effect would it have on the structure of our courts, and
courts administration? What would be its cost?[201]
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:
McKenzie friends have many pitfalls, but what
is the alternative? "Go away. The courts are not for you."
Speaking personally, I would rather take my chance with a flawed
McKenzie friend advocate than go it alone. Indeed, I probably
would not go it alone at all
McKenzie friends are not competition
to solicitors in the traditional sense. They are the desperate
last chance "no one else to turn to" brigade
People
go to them when they cannot find a solicitor. They are not at
the top of anyone's speed-dial list.[213]
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:
The majority of McKenzie friends are part-time,
and they might earn in the high hundreds or low thousands of pounds
a year. If you require those McKenzie friends to have indemnity
insurance, to have qualifications and to fall under the jurisdiction
of the legal ombudsman and the rest of the panoply that comes
with regulation, you will quickly find that their costs soon exceed
their annual income, and you would drive them away from the market.[215]
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:
Lawyers may be fearful of breaching their code
of conduct or being made the scapegoat if something goes wrong.
There is a balance to strike between removing regulatory barriers
that prevent lawyers from offering such services while maintaining
necessary consumer protections. The Law Society has issued a practice
guidance note identifying a series of risks, for example around
allegations of professional negligence arising from insufficient
knowledge of the client's situation; allegations of professional
misconduct in relation to client care and duties to the court
and third parties; unwittingly creating a full retainer and the
consequent liabilities; compliance with professional indemnity
insurance terms; and dealing with complaints. While these risks
need to be addressed, the Panel is encouraged that the Solicitors
Regulation Authority has said it has no fundamental objections
to unbundling.[218]
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:
the state runs a system which applies, as I understand
it, in both family cases and civil cases, such as debt and landlord
and tenant, where public money is focused not on representing
individual litigants but on providing support and advice to litigants
as a class. The model is very interesting. Each Californian courthouse
has facilities on site where litigants in person are assisted
to fill in the forms correctly, so that when they go to the counter
the form is quickly filled in. They run training seminars so that
you can go along to an LIP class and there will be somebody there
to explain to you how the system works.[220]
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
165
Family Law Bar Association (LAS0069) Back
166
Q 260 Back
167
Implementing reforms to civil legal aid, NAO, HC 784, Session
14-15, November 2014, para. 1.17-1.34 Back
168
The Magistrates' Association (LAS0043) Back
169
Experimental Statistics Research in the Family Courts, Ministry
of Justice, November 2014 Back
170
Q 258 Back
171
Q 264 Back
172
Q 260 Back
173
Ibid. Back
174
Q 258 Back
175
Q 265 Back
176
Family Justice Council (LAS0082) Back
177
Civil Justice Council (LAS0080) Back
178
P v D, [2014] EWHC 2355 (Fam) Back
179
Family Law Bar Association (LAS0069) Back
180
Ibid. Back
181
[2014] EWFC 31 Back
182
Paras. 73-75 Back
183
Para 71 Back
184
Q 274 Back
185
Para. 244 Back
186
See Lady Hale in Re W [2010] UKSC 12. Back
187
Family Justice Review Report (2011) Ministry of Justice,
Department for Education, and Welsh Assembly Government. para
4.151 Back
188
Q 298 Back
189
Q 269 Back
190
R (Gudanaviciene) v The Lord Chancellor, [2014] EWCA (Civ) Back
191
Consortium of Expert Witnesses to the Family Courts (LAS0086) Back
192
Q v Q [2014] EWFC 7 Back
193
Ibid. Back
194
Q 296 Back
195
MoJ press notice 23 October 2014; Implementing reforms to civil
legal aid, NAO, HC 784, Session 2014-15, November 2014a. 1.30 Back
196
Q 220 Back
197
Low Commission Report Back
198
Civil Justice Council (LAS0080) Back
199
Q 301 Back
200
Civil Justice Council (LAS0080) Back
201
Lord Thomas of Cwmgiedd, 3 March 2014, Speech to "JUSTICE". Back
202
Qq 270-271 Back
203
Q 221 Back
204
Legal Services Consumer Panel, Fee Charging McKenzie Friends,
(April 2014) Back
205
Q 47 Back
206
Q 48 Back
207
Q 47 Back
208
Q 242 Back
209
Q 272 Back
210
Ibid. Back
211
Q 242 Back
212
Q 272 Back
213
Q 243 Back
214
Q 222 Back
215
Q 240 Back
216
Q 239 Back
217
Q 340 Back
218
Legal Services Consumer Panel (LAS0012) Back
219
Q 237 Back
220
Q 266 Back
221
Ibid. Back
222
Q 268 Back
223
Q 269 Back
224
Q 268 Back
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