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A Rising Tide of Litigants in Person Threatens Courts’ Abilities to Offer Access to Justice

Friday, 14 November 2014

The Government’s efforts to cut the budget deficit have meant that legal aid has been slashed along with many other areas of public spending. Legal aid was costing taxpayers £2 billion per year and it was seen as a necessary target for cuts but many professionals believe that the government has failed to reform the system in turn.

Despite being regarded as superior to other European systems, the English legal system has struggled since the budget cuts came into force with many barristers in particular describing it as ‘unsustainable’. Court fees have also increased to such an extent that many ordinary people simply cannot proceed with claims. For example, claiming against a former employer can now cost £1,200 in court fees alone, a figure which some observers believe explains the 70% fall in these types of employment cases in the last year.

Family law is one area in particular where individuals are increasingly tempted to go it alone. However, specialist advice is always a better solution as this area of law is particularly complex and short term savings can come at a long term cost, whether they relate to child custody proceedings or financial settlements in divorce.

The Rise of Litigants in Person

Many individuals in need of legal assistance have turned to a variety of organisations for free legal advice, such as the Bar Pro Bono Unit, who has seen an increase of 50% in applications in 2014.

However, people are also increasingly representing themselves in court in alarming numbers, a phenomenon which is known as ‘litigants in person’. Cases of litigants in person have grown from 17% to 29% between 2011 and 2013.

Any individual is of course, entitled to represent themselves, yet their ability to do so is severely limited and, in consequence, the system itself is becoming dysfunctional.

Issues with Litigants in Person

Litigants in person often face a range of disadvantages when they prepare their own cases or represent themselves in court. A lack of knowledge about the legal system, timetables and the issues that are legally relevant all conspire to make life more difficult than for those with professional lawyers.

Typical examples of the difficulties include litigants in person being unable to provide critical evidence, either because they cannot afford the service of experts or because they are unable to present the evidence in an effective manner themselves. In certain types of disputes such as divorce, former partners tend to perpetuate within litigation the conflict that brought their marriage to an end rather than focus on the legal issues at stake. Thus, cross-examination is often conducted in an abusive manner which is in stark contrast to it how it is carried out by lawyers who must conform to a Code of Practice.

In addition, cases involving litigants in person typically take far longer; family cases for example may last years not months. The increase in duration leads to increased costs while the quality of justice is heavily reduced as individuals struggle to make proper and fair cases.

Governmental Actions to Tackle the Growing Issue of Litigants in Person

The government has attempted to tackle these issues. It has announced £2 million in funding for legal advice and online information to help litigants in person.

Simon Hughes, the Justice Minister, has agreed to take further action. He admits that the rise in litigants in person is a result of the legal aid budget being restricted due to the current unprecedented financial pressures. An announcement from the government is due in the next few weeks on how these issues can be tackled further.

However, it is known that there will be no extra funds to restore legal aid provisions. Hughes is therefore hoping to ‘find ways to support persons without needing to give them lawyers’, but he acknowledges the difficulty in achieving this.

Comment

Litigants in person are just one symptom of a court system under pressure and, although measures are being taken to tackle these problems, more can be done in reducing the work load for courts. For example, the government has talked about those challenging motoring convictions to take claims to town halls before going to magistrates. This type of procedural change may help reduce any legal costs for the individual and ease pressure on the legal system but is unlikely to help resolve more substantive legal issues for litigants.

Professional legal advice usually comes at a short term premium but in most cases litigants benefit from better outcomes in the long run. Obtaining the right financial settlement in divorce for example is far more likely if an experienced family lawyer is involved early on. Time, costs and conflict can also be kept to a minimum with the right advice.

If you need legal advice in relation to family law issues, please contact Jeetesh Patel via e- mail JPatel@rollingsons.co.uk or by telephone on 0207 611 4848.

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