Martin Partington: Spotlight on the Justice System

Over three years ago, in this blog, I drew attention to a report of a committee of the Civil Justice Council chaired by Robin (now Mr Justice) Knowles on how the courts might deal with increasing numbers of litigants in person appearing in the civil courts.

Since that time, a number of further publications have appear indicating the concerns that the judiciary and the legal profession have in dealing with litigants in person (LiP).

For example, in October 2013, the Judiciary published their Handbook for litigants in person. Written by a team of county court judges, led by  HHJ Edward Bailey, this is a 170 page document giving guidance to the LiP on the different elements that make up the civil justice system and the different stages that a case may need to undergo for a dispute to be resolved. The Master of the Rolls, Lord Dyson, in a foreword wrote that the handbook

will, I am sure, play an important role in rendering the civil litigation process less daunting and more accessible for those litigants who represent themselves. In that regard it will play an important part in helping to maintain our commitment to access to justice as a right available to all.

I confess I have my doubts. By comparison with, for example, legal textbooks on civil procedure, the document is a relatively easy read – but that said for the non-professionally qualified person, I think it is pretty hard going. It would be interesting to know how many people have in fact been able to prepare themselves for an unrepresented trial by taking the advice set out in the handbook.

More recently in June 2015 the legal professions have published Litigants in person: new guidelines for lawyers,
a document which – in effect – reminds professionally qualified lawyers that they owe a duty to the court – not to make the case for the unrepresented party but at least not to take advantage of the fact that their opponent is unrepresented.

Concern about the rise in the numbers of LiPs has, of course, arisen because reductions in the amounts of legal aid for representation in court has reduced the numbers of cases in which parties can be professionally represented. And, in that context, both the judiciary and the legal professions efforts to make things a bit clearer for LiPs is to be welcomed.

But I think there are more fundamental questions which these publications do not address. In particular, there is an assumption that the current practice and procedure of the civil justice system is the right one, and that therefore the remedy is to give the LiP the skills to comply with current practices and procedures.

But what if the current practices and procedures, though ideal for lawyers and judges who are used to them, are not actually the most sensible or effective?

There are plenty of alternatives which might be thought about:

• for example, tribunals in the main adopt procedures which are determined by the chair of the Tribunal;
• the Financial Services Ombudsman use trained staff to assist those customers who are complaining about the service received from banks or other financial institutions to put their complaints into writing
• other systems, such as Tenancy Deposit disputes use an electronic portal to ensure that the key documentation and evidence is available for the dispute resolver to deal with the case.

The Leggatt Review of Tribunals, published way back in 2001, talked of the tribunal having ‘an enabling role’. This did not mean that tribunal judges were biassed in favour of one party rather than another; rather the system should be designed to ensure that the unrepresented knew what information would be likely to be relevant.

The recent JUSTICE report, Civil Justice in an Age of Austerity began to make some rather more fundamental questions about whether the current practices and procedures of the civil justice system are sustainable. In that context, the ‘problem’ of LiPs raises questions that handbooks and guidelines – however well-intentioned – are unlikely to address.

To read the Judiciary Handbook go to https://www.judiciary.gov.uk/publications/handbook-litigants-person-civil-221013/

To read the legal professional guidance go to http://www.lawsociety.org.uk/Support-services/Advice/Articles/Litigants-in-person-new-guidelines-for-lawyers-June-2015/