Litigants in Person: what the research actually says

Discussion surrounding the Green Paper on legal aid reform has focused, in part, on litigants in person (LiPs).  An idea which has received particular emphasis is the impact of LiPs on the courts.  This finding from research I conducted with Mark Sefton for the MoJ’s predecessor in 2005 has been highlighted in defence of the reforms: “Research conducted by the former Department for Constitutional Affairs in 2005 did not find a significant difference between cases conducted by a litigant-in-person and those in which clients were represented by lawyers, in terms of court time.”  To be fair to The Secretary of State for Justice, Ken Clarke, he made a rather different argument yesterday before the Justice Committee.  To paraphrase, he said by cutting legal aid we will cut the numbers of litigants and therefore there will be less court time spent on [fewer] cases.  This is much closer to the truth of the research, as we shall see.

It is perhaps more important to emphasise this passage in the Green Paper which has received much less attention but leads into the sentence emphasised above:

We recognise that the proposals to reduce the scope of legal aid will, if implemented, lead to an increase in the number of litigants representing themselves in court in civil and family proceedings. This may potentially lead to delays in proceedings, poorer outcomes for litigants (particularly when the opponent has legal representation), implications for the judiciary, and costs for Her Majesty’s Courts Service.

We believe that many of the cases currently funded through legal aid could be resolved without recourse to the courts. Nevertheless, litigants are entitled to bring their cases to court, and to represent themselves, if they wish. We also expect that many of the litigants representing themselves will be doing so in fora where the proceedings are particularly suitable for litigants in person.

There is, however, little substantive evidence on the impact that a litigant-in-person has on the conduct and outcome of proceedings.  Research conducted by the former Department for Constitutional Affairs in 2005 did not find a significant difference between cases conducted by a litigant-in-person and those in which clients were represented by lawyers, in terms of court time.

Now might be a good time to emphasise not what the research did not show, but what it did show.  I quote the executive summary in full.  The main findings (which concentrated on civil and family cases in a small selection of county courts) were:

1. Unrepresented parties in cases were common. It was usually defendants and not claimants/applicants who were unrepresented. Obsessive/difficult litigants were a very small minority of unrepresented litigants generally, but posed considerable problems for judges and court staff.
2. A large part of the reason for non-representation, especially in civil cases, was in fact non-participation. Some unrepresented litigants were in fact partially represented. Although there was evidence that significant numbers of unrepresented litigants had some advice on, or assistance with, their case, the evidence suggested this help was ad hoc.
3. A small but significant proportion of cases involved at least one active party who was unrepresented throughout the life of their case. Cases where both parties were unrepresented were rare. There were variations in nonrepresentation by types of case and litigant. Some unrepresented litigants indicated vulnerability.
4. Although sometimes less serious and less heavily contested than cases involved in represented litigants, what was at stake for litigants was nevertheless significant. Parties go unrepresented for a range of reasons including choice and the lack of free or affordable representation.
5. There is little evidence of an explosion in the numbers of litigants in person, though the situation is unclear in the family courts.
6. Participation by unrepresented litigants is not the same as active defence. Levels of activity suggested cases involving unrepresented litigants may have involved more court-based activity than those cases where all parties were represented. Within cases involving unrepresented parties, participation by unrepresented litigants was generally of a lower intensity than participation by represented parties.
7. The bulk of participation took place via the court office not the court room.
8. Unrepresented litigants participated at a lower intensity but made more mistakes. Problems faced by unrepresented litigants demonstrated struggles with substantive law and procedure. There was other evidence of prejudice to their interests.
9. There was at best only modest evidence that cases involving unrepresented litigants took longer, though cases with unrepresented parties were less likely to be settled.
10. Some courts and local advice providers may be more welcoming to, or encouraging of, unrepresented litigants than others. Courts were not confident signposters of unrepresented litigants to alternative sources of help.
11. Judges recognised that unrepresented litigants posed a challenge to the ‘passive arbiter’ model of judging and responded to that challenge with varying degrees of intervention. Court staff recognised unrepresented litigants’ needs but were unsure of what help was permissible because of the way the ‘no advice’ rule was managed.
12. Court staff and judges perceived that improvements could be made in the way that unrepresented litigants were handled.

What the research essentially shows is not that litigants in person gum up the courts with vexatious cases and applications (though some do) but that most struggle to participate in their cases if they participate at all.  Where they do participate, the evidence suggests they do so sporadically; they sometimes damage their own interests as a result; and they probably create more work for their opponents and the courts themselves.  The main impact of reforms which reduce the number of represented litigants will be to reduce the number of cases that are brought or edfended as Mr Clarke rightly identified, but where LiPs do not participate they will increase the workload of opponents, court staff and judges.  This is most likely, I would surmise, in family cases where applicants are sufficiently motivated (or desperate) to represent themselves.  This will pose difficult challenges to the judiciary, to opposing solicitors, to CAFCASS and to court staff.  It is to be hoped that the Family Justice Review has a firm grip on the problems to be created and how to solve them.  A key issue will be what infrastructure, training and support is put in place to deal with these problems.

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About Richard MOORHEAD

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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4 Responses to Litigants in Person: what the research actually says

  1. Stephen Anderson says:

    Interesting Richard. Although I’m a family solicitor, my only significant involvement in court is as an in-court mediator. Our judges had persuaded me that self representing parties were hugely time consuming compared to those represented by lawyers who know what they’re doing. But I can see that another side of the coin may be that lawyers who know what they are doing can work the system for a client who has a poor case in such a way that the court process extends beyond the norm! Also, I would argue that 9/10 lawyers who really know what they are doing have clients who tend not to end up in court in the first place.

    • Richard Moorhead says:

      Thanks! I think where unrepresented litigants decide to participate and do so fully, they probably often are more time consuming: this is what the judges see – I’m actually not disputing their view. But much more common is the situation where they do not really participate and simply put up with their problem or take the law into their own hands. Without legal aid there need to be other mechanisms of support to encourage litigants to participate and to do so constructively. I see no real recognition of that in the green papers.

  2. Diogenese Associates says:

    Although this discussion focuses on the governments attempt to save time and money – they are, at the same time neglecting the whole point of the Justice system – to arbitrate in cases of dispute where concensus cannot be reached.

    If court time is only available to those who can afford to pay for it, then there can be no justice. We already operate under a de facto system which is completely at odds with the Common Law that forms the basis of English law.

    Let’s be realistic, even when both sides have representation, it is not often that Court staff “get it right”. The number of errors that occur seems to be in direct proportion to the high number of staff employed within the system – we are often presented with situations where staff are more concerned with the procedures and less concerned with the dispensing of justice and this unfortunately spills over into the court-room where the Judge will wish to sit firmly on the fence rather than make controversial or provocative decisions that may give rise to an appeal.

    The justice system as it stands is nothing more than a theatre with players on a stage seeking only to give voice to well rehearsed scripts without any real consideration given to the people standing before them.

    How many judges fail to swear their oath to the Queen and thereby enter the court under false pretences? The system is a sham, operating within a sham giving rise to sham decisions – if you’re not part of the solution, then you are part of the problem.

  3. RIGHTS OF LITIGANTS IN PERSON – HUMAN RIGHT BREACHES:
    I am reeling with shock, by the inequality I have so far faced by the Courts that has added salt to my wounds. I have not been treated fairly purely on the basis that I am a litigant in person as I prepare myself mentally for the long haul fight that may result in me visiting the Human Rights Courts in France if I fail to get legal justice in this country. I will prove time and time again my rights have been breached mainly because I have been a litigant in person at first not knowing the law and now a litigant in person who has finally begun to understand the law and how the law has failed me. I have been fighting cases since 2006 against the same mortgage lenders at first defending an eviction a vulnerable ill mortgagor, and in 2009 my fight back to get refunds of excessive charges I sued them for increasing my mortgage by £5,500/- approx in charges for just being in arrears. As this case against my mortgage provider has progressed conflict of interest, a void mortgage and twenty other breaches that has come to light, including a near eviction that breached my rights as a mortgagor as it is my home they were evicting me from, callously using my circumstances as an excuse. My home an investment that I bought in good faith, loans and Insurance I took in good faith from the financial professionals they call themselves. Taking advantage of my situation of being unable to work due to ill health dismissive of circumstances of a person caught up in all the hell a hit and run car accident can really do, labelled a delinquent borrower on credit rating sites when evidence proves otherwise.
    High flying legal teams blatant disregard to the ethics of law & Court regulations, work the system with perjury, as evidence can prove. In reality there is no such thing as a STATEMENT OF TRUTH: I have statements of deliberate misrepresentations and perjury in my possession, accepted as truth, just because the legal representative has a law degree / versus the litigant in person shaking with nerves standing up to the Goliath and even more shockingly the Courts turn a blind eye accepting such statements that make a mockery of what real justice should really be. As the wheels of justice keep turning against a litigant in person first bullied into submission by the perforators’ of crime and then by the Courts who up to now are not user friendly to litigants in person, again breaching the human rights of the individual to a fair trial.
    I have been complimented on my presentation of my case by a few Judges, but cannot understand why my bundles go missing in court. This has happened three times till date, after I have submitted them in the presence of a PSU representative that has caused me to get verbally assaulted by a Judge who automatically presumed it was my error causing me to have a panic attack. I nearly passed out as I was dismissed, stopped short, when answering a question she asked raised by the defence as she vented her anger towards me. I have witnessed in utter baffled confusion, trying to understand court procedure and protocol as Courts have gone against their own orders and have allowed Defence bundles with contempt’s. Timely applications for cases to be heard not placed in correct order, cases that should have been postponed by Court heard resulted in cases being thrown out due to court errors and then re-instated. Disclosure not presented on dates set by the Court, blatant contempt’s by the defence disobeying court orders with no penal retribution. Judges in good faith either not having the time to read the case notes, or to get a quick breakdown of cases lean heavily on the Defence councils recommendations who are in turn too eager to de-stabilise the case in their favour have led to the three different Judges giving detrimental orders. In a recent case when the Judge vented her anger towards me without looking at my bundles as it was not presented to her on the day of the hearing presumed lost or destroyed by the Court. A case should not be heard in all fairness if the claimant’s (myself) bundles of evidence is not placed in front of the Judge, the case should have been postponed and further the Court should not use Defence Bundles once the Court has been forewarned that it contained evidence that has been forbidden by the Court.
    These Judgments have breached the human rights of my family and self all recovering after a hit and run car accident by the superfast eviction from 2006 and has continued till date. The eviction order should not have been granted in 2006 as the Mortgage as it stood from the moment of inception ‘Void in law as no terms and condition contract was ever drawn up and was not presented to the Court to prove that I had breached the contract in 2006’ and the Courts should have scrutinised the paperwork to protect my rights as a mortgagor in 2006. My rights as the mortgagor was not protected by the Sect 36 of the Administration of Justice Act, perjured witness statements, taken as the truth nearly led to a near eviction in 2006. It is only recently I have come to understand the Property Law of England and Wales. I have been sold a predatory mortgage stripped of all my rights as a Mortgagor as serious conflict of interest has occurred in the favour of the lenders who have been heavily fined for abuses in 2009 by the FSA. The lenders, their company solicitors enticed the broker into their ring of deceit giving him the charge to procure my signature despite them promising to pay all legal costs and failed to do so. Having instructed their company solicitors who have claimed they were never instructed to act on my behalf, knowing I was never given legal advice prior to the signing and on the day of the signing the mortgage was the mortgage was approved and registered in the land registry in 2005. The unfairness I have continued to face has shaken me so much 20 serious breaches made by the mortgage company and their touts their company solicitors/the brokers. I have to continue to fight my cases on my own, my head kicked around like a football and my rights of audience and fair trial denied guaranteed by the Human Rights Act that some Judges do not seem to care about. Lenders and Brokers fold companies that have either fallen foul with the FSA or pre-emptively fold only to re-open under different company names to avoid the long arm of the law.
    What respect of the law will be left as Terrorists are given free help from the legal aid system and a LIP told that £12,000/- will be added charged to the home of a LIP if all court costs cannot be obtained is a slap in the face of what the Law is all about and should be, the protection of the victims and not the perforators’ of crime. Financial wrongdoers should be penalised heavily to show them what breaking the law is worth in consequences as they continue to con the British Public and the FSA continues to allow them to do business?
    The Courts have now continued to allow this eviction order to continue after being told the order was obtained by perjury as it is causing my credit rating to be low. I now have to make appeals to overturn the order which I am finding it hard to overturn. The case is on the 28th Oct 2011 next week at the Manchester Civil Justice Centre at 10.30am a Circuit Judge will preside over the case as I wade my way up the ladder to the High Court and probably the Human Rights Court. As I shake in my boots with nerves, and I wade through trying to grapple with complicated court procedure and further understand the law, I will persevere to unravel the financial maze of deceit laid out in great style by financial giants and their legal teams I will stand my ground and hope for the best from what the legal system ought to be.
    The Rights of litigants in person all over the country are being breached. They should be treated with dignity and respect, under given circumstances of being in an alien environment. Strict laws to penalise wrong doer’s solicitors who are committing perjury deliberately to win the cases as they damage the reputation of the legal system and more LIP’s will seek justice as they lose faith in their solicitors. The legal system is an honourable one, if I could have turned back time and if I had the benefit of education I would have taken up law as a profession as I am fascinated by it and the law should be seen to be and should be respected by those who have the duty to uphold its sanctity. My faith is badly shaken I must admit, alone with no one to turn to, just my faith in the judicial system of this Country.
    The Judges should remember we LIP’s are human and should respect the courage the individual takes to take such a stance and not treat them the LIP’s with distain just because they have the power to make a person feel uncomfortable in the already alien court environment by giving the defence barrister a field day with the head of a LIP on the platter. Victims all trying to get their lives back are not what they would expect from the Democratic Courts. The wrath of the law should be towards the law breakers and not the victims of crime.
    I am not in arrears but I now fear losing my home as the Void predatory mortgage that has been forced on me needs to be repaid once the charge is removed. Even though I should be entitled to serious damages and the whole amount can be written off if the Court so desires to punish the wrongdoers all these errors are not my fault is left to be seen.
    As I struggle to restart a business I was forced to fold a promising music recording label, part of the Brit Academy of Judges for a few years, and come to terms with the shock of what has transpired and how close I was pushed to a nervous breakdown and suicide in 2006. This is not what I expected from the legal system and the financial system in this country. I am not looking for pity but Justice. Please help protect the integrity of the legal system. My heart goes out to all those who are LIP’s and my prayers. It wasn’t an easy decision to want to represent myself, with the legal aid system in shambles. God help us all, if the Courts cannot protect us from abuse. Julie de Souza

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