Martin Partington: Spotlight on the Justice System

One of the consequences of the planned cutbacks in legal aid is that the senior judiciary have become increasingly concerned about the ‘problem’ of litigants in person – people who want to take a case to court, but who cannot afford a professionally qualified lawyer to represent them. They fear that more and more people will want to represent themselves in court and that cases will take longer. These fears have been used by both practitioners and the judiciary to argue that cuts to legal aid should not be as great as the government would like. The problem with these arguments is that there seems no realistic prospect that the cuts in legal aid will be reversed. A more sensible approach, therefore, might be to get people in the system to do some serious thinking about how civil justice might be delivered differently.

It was in this context that  a working group set up by the Civil Justice Council, chaired by Robin Knowles QC, was asked:

(1) To consider what steps could be taken to improve access to justice for litigants in person.
(2) To consider what steps could be taken to prepare for the possibility that the number of litigants in person will increase materially.
(3) To focus on steps that would not require material additional financial resources.
(4) To consider the possibilities for further development of pro bono advice and assistance for litigants in person.

In other words, like it or not, they were told to assume that funding for legal aid would not increase.

In its report, published in November 2011, the Working Group does not welcome the proposed cuts to legal aid; far from it. But they argue that there will be an increase in the numbers of the self-represented, and that much more should be done to make it easier for them to use the courts. Adopting the language of the Leggatt Review of Tribunals, they observe that users of the court system – by which they mean members of the public, not lawyers or judges – should be taken into account much more consciously than has been the case in the past. (There are areas of the legal system where parties routinely represent themselves; social security tribunals – which hear hundreds of thousands of cases a year, rarely with representation – is the prime example.)

To achieve this, the Working Group makes a substantial number of recommendations, both short-term and longer-term. They focus on the importance of making processes simpler; making information easier to understand; giving advice to judges and court staff on how to assist the self-representing litigant; devising a code of practice to prevent professional advocates taking advantage of the self-represented litigant. They also give strong backing to the promotion of public legal education designed to make information about rights and entitlements, and also about court procedures more readily available.

The tone of the the Working Group is not, in fact, a revolutionary one; many of the proposals are sensible and with the appropriate leadership and championning might offer some assistance to those with legal rights to assert but who cannot afford lawyers to assert those rights.

But underlying the report, unacknowledged, is a pretty big question: is the current model of adversarial justice ever going to be able to deliver proportionate justice to the ordinary person who wants to use the law to assert his or her legal rights?

It is not clear how the Government is going to respond to the report; but it merits much more public attention than has so far been paid to it.

To read the report go to http://www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/cjc/self-represented-litigants.htm