Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘litigants in person

Equal treatment: Guidance from the Judicial College

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It should go without saying that, particularly in the legal arena, those who take part in proceedings before courts and tribunals need to feel that they have been treated equally.

This is, of course, easier said than done, as David Lammy’s report on the Criminal Justice System, published in 2017 showed. (See this blog 29 Sept 2017). But for many years first the Judicial Studies Board and now the Judicial College have offered guidance to judges (and by extension to others involved in the justice system) about the best ways to try to ensure that people are treated fairly.

Much of this focusses on the language that judges and others involved in the justice system use generally (for example in relation to litigants in person) and in relation to those from specific sectors of society, who may be defined by their religion, their ethnicity, their sexual orientation, mental or physical disabilities, their gender.

In February 2018, the Judicial College published an on-line updated revision to its ‘Equal Treatment Bench Book’. Bench books were originally devised as a handy guide to key issues which could sit on the judge’s desk, available for him to refer to it that seemed necessary.

I am not sure whether this particular Bench Book can be used in this way. For one thing, it is very long – well over 400 pages. And the issues raised are such that I would have thought judges would need to have considered them before a case or other proceedings have started. (It would not be desirable for a judge to stop in the middle of a sentence in order to look up how a particular person should be addressed.)

But I don’t agree, as some comments in the press have suggested, that the Equal Treatment Bench Book is an example of political correctness gone mad. It seems to me to be an honourable attempt to raise questions and address issues that arise in practice but that many judges may not have thought about before. (Indeed, I think there are some parts of the book that would be of interest to a wider readership.)

I set out the link to the text here, and invite readers to take a look at the Book and come to their own view on its value.

See https://www.judiciary.gov.uk/wp-content/uploads/2018/02/equal-treatment-bench-book-february-v6-2018.pdf

 

 

 

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Written by lwtmp

April 4, 2018 at 3:19 pm

Litigants in person: a problem for the civil justice system or a catalyst for change?

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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/

Written by lwtmp

July 3, 2015 at 2:39 pm

Unlikely revolutionaries? The changing face of civil justice

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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

Written by lwtmp

March 2, 2012 at 3:15 pm