Readers interested in litigants in person and the evolving nature of civil justice in England and Wales should take a look at this Judicial Working Group on Litigants in Person Report July 2013. It follows on from the similarly high quality CJC report on self-represented litigants. The Working Party was led by HHJ Hickinbottom and takes a significant step towards biting the judicial aspects of the bullet that is litigants in person. It is focused and in some ways restrained in its proposals recommending that the Ministry of Justice and HMCTS devote the necessary work and resources to developing appropriate materials, “including, especially, audiovisual materials, to inform litigants in person what is required of them and what they can expect when they go to court.” This is an almost constant refrain from those interested in the topic and there are various attempts to produce materials which need co-ordinating, building upon and user testing. There is almost no knowledge of how such materials are used and ‘what works best’; though there is quite a bit of work in the US (California in particular) where support mechanisms short of advice but involving warm bodies alongside the cold machines, have been invested in by the Courts to positive effect.
In the light of the lack of knowledge in the area the Report’s recommendation for an urgent and thorough review of HMCTS “web-based information, to ensure that litigants in person can easily access the information they need to understand and decide on the various courses of action open to them, and to prepare for, and present, their case in a court or tribunal” is also very welcome. There is also a reasonably robust recommendation that judicial training on LiPs should be deepened by the Judicial Council for which resources may need to be found.” The report spells out what is already done and, to put it baldly, it ain’t that much. Criminal judges are particularly poorly served, where the existence of and problems caused by litigants in person seem to me at least peculiarly under-discussed generally.
The potentially radical element in the report is the recommendation that:
“The Judicial Office should undertake, urgently, further work to assess the merits of three proposals:
◊ Provision of a dedicated rule that makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person.
◊ Introduction of a specific power into CPR Rule 3.1 that would allow the court to direct that, where at least one party is a litigant in person, the proceedings should be conducted by way of a more inquisitorial form of process.
◊ Introduction of a specific general Practice Direction or new Civil Procedure Rule that would, without creating a fully inquisitorial form of procedure, address the needs of litigants in person to obtain access to justice while enabling courts to manage cases consistently with the overriding objective. “
It is here that there is a subtle, concise but substantial engagement with the critical issue of how the litigants in person require the judiciary to adapt civil procedure and the judicial approach (passive arbitrator within an adversarial paradigm) will have to change. It is a difficult issue, properly seized: adversarial process will have to become more inquisitorial. In some ways the difference between being adversarial and inquisitorial can be unhelpfully abstract. Indeed, the report talks of being more inquisitorial, but not fully inquisitorial, as well as being properly inquisitorial. Ultimately, as the report’s authors grasp, it is important to talk about specifics.
“Obtaining the necessary evidence from litigants in person can be greatly furthered when judges adopt a flexible and interventionist approach to proceedings. However, judges have a fine line to tread in giving legitimate assistance to a litigant in person without eroding the confidence of other parties in their impartiality, especially where those other parties are legally represented; a challenge that varies greatly from case to case.”
The balance being struck is what Richard Zorza calls engaged neutrality. Whilst one could argue (and I imagine the judiciary and practitioners probably should debate – informed by research if possible) the specifics of guidance and procedural change the report does provide a strong positive lead on the necessity and benefits of greater judicial intervention and emphasises the benefits of this occurring in defined and expected ways. For that reason a dedicated process for cases involving litigants in person would assist judges and represented parties in knowing how cases will differ when one or more parties is unrepresented. Judges should, the Report authors state, intervene to ensure parties have clearly identified legally relevant issues. This is seen as essential to judges properly hearing their cases. The points at which they draw the line between legitimate intervention and reaching over the bench to over-assist a LiP are interesting:
“It will usually be appropriate, indeed necessary, for a judge to point out to a litigant in person what the relevant procedural rules are. A more difficult area is suggesting a procedural step that the litigant might take. It will depend very much on the circumstances whether it is proper for a judge to suggest, for example, that an application for specific disclosure be made; if the judge considers that the case cannot be tried justly without the additional information, it will be appropriate. But some applications are tactical, and judges may find themselves accused of improperly ‘descending into the arena’, if they are not cautious.”
Different judges may disagree about the need to be cautious here. It’s a balancing act which needs careful thought and debate as the report’s tone and recommendations suggest. It provides a lead and says further leadership is needed to drive this recalibration of civil process through the system. The overriding objective on the court to deal with cases justly, “supplemented by CPR Rule 1.3, which requires parties to assist the court in furthering the overriding objective, and by CPR Rule 1.4, which requires the court to actively manage cases so as to further the overriding objective” provides something of a doctrinal basis for more inquisitorial approaches.
Consideration towards simpler rules for LiPs is also given credence by this observation of the simplifying and rationalising imperative of the Woolf reforms:
“In fact, ten years or so on, the two volumes and supplements to Civil Procedure (‘the White Book’) now account for nearly 7,000 pages. In practice, the sheer breadth, use of technical terms, need to cross-refer, and supplementation by a host of Practice Directions, Practice Guides, protocols and court forms, present a picture of complexity that can be daunting for lawyers. It is a substantial challenge for any litigant in person. “
Complex system are of questionable benefit when served by expert practitioners; when the courts are often peopled by inexpert litigants who cannot realistically be expected to get sufficient advice to help them through it, then complex systems have to adapt. This report is a cogent step in the right direction.