Thursday, 17 January 2013
3 years old ~ Self representation (a bleak outlook)
2013 will see the implementation of severe cuts to civil legal aid. These were enacted in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and will come into force on 1st April 2013. The cuts, pressed through Parliament during the Lord Chancellorship of Kenneth Clarke, are savage and brutal and will undoubtedly deny access to justice for thousands of people in crucial areas such as disputes within families about children (subject to exceptions), and most medical negligence cases. Legal aid will be restricted in other areas such as housing, immigration and welfare benefits. Furthermore, funding for alternative sources of legal advice is drying up - see, for example, Law Society Gazette 9th January 2013 - Birmingham Law Centre faces axe after a century.
It is inevitable that the numbers of 'self-represented parties' (previously referred to as litigants-in-person) will rise and this will place additional pressure on the courts and tribunal system. Such litigants, if in a dispute with public authority, will almost certainly find their opponent well represented by lawyers well versed in the subject. Such inequality of arms in an essentially adversarial system is striking.
An interesting and emerging issue is just what tolerance, if any, will courts and tribunals give to such litigants? Perhaps this will vary from place-to-place; from judge-to-judge. However, if some recent decisions of the Court of Appeal are a guide, the answer will be that the courts will show very little tolerance to these litigants. In Tinkler and another v Elliott  EWCA Civ 1289 (Maurice Kay, Munby and Lewison LJJ), the issue was adherence to a civil procedure rules time limit. Maurice Kay LJ said that lack of understanding of procedures did not entitle the litigant to extra indulgence - [see para 32 of the judgment]. Maurice Kay LJ stated - [at 32] - 'The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far.'
A further case is Fernandez v Kenny and others (reported on Lawtel) where an unrepresented landlord failed to attend a small claims hearing. The Court of Appeal upheld a decision of the trial judge that the landlord had failed to meet the requirements of the civil procedure rules. Of course, it is almost certain that the landlord in question had never heard of the civil procedure rules!
See the Law Society Gazette article on these cases - Decisions affecting litigants in person - District Judge Graham Green 14th January 2013.
The Judiciary has just published 'The Interim Applications Court of the Queen's Bench Division of the High Court - A guide for self represented litigants.' This is considered by Jonathan Rayner in the Law Society Gazette 11th January. A further article is by Rachel Rothwell in the Law Society Gazette 15th January 2013 - Putting it simply: a handbook for LIPs. The document will be of some help to those unfortunate enough to have to represent themselves in the intimidating atmosphere of the High Court but, as Rothwell notes - ' ... it barely needs saying that a simple handbook is no substitute for the reassurance of having a lawyer at one’s side throughout a case.'
It may be that similar documents will appear to assist self represented litigants in other courts. The sooner the better.
Law Society - Guidance for solicitors relating to Litigants in Person - 19th April 2012
The Justice Gap - Listen carefully and try to understand - Louise Restell who refers to what Lord Woolf said in 1995 - ‘Only too often the litigant in person is regarded as a problem for judges and for the court system rather that the person for whom the system of justice exists. The true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people.’