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.