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Justice by gimmick (From Solicitors Journal)

From my latest Solicitors Journal column “Family Business”, 10/07/2012.

Instead of developing a ‘divorce by app’ scheme the government should consider allowing ‘no-win, no-fee’ in family cases, says Marilyn Stowe

It has finally happened. After a slow and agonising demise legal aid has met its end at the hands of the coalition. Access to justice, one of the cornerstones of Western democracy, is under threat.

In family law the future is one in which self-represented litigants cram the courts and judges take a more inquisitorial approach to handling proceedings. The government isn’t leaving people to fend for themselves though; no, they are developing a ‘divorce app’ that will guide couples through the process.

There is no part of the above paragraph that doesn’t make me feel queasy for the prospects of thousands of families across the country who seek legal recourse every year. I have already witnessed at first-hand the challenges self-represented litigants face in understanding the law, navigating the court system and dealing with judges who have little experience of handling a case in these circumstances.

Judges are not only being told to ask more questions, making hearings much more like tribunals, but are also charged with undertaking case management to avoid massive backlogs. All of which is added to their current responsibilities of understanding a case, interpreting the law and adjudicating.

They are under more pressure than ever before. The days when they were only ever presented with two sides of a carefully constructed argument by well-trained solicitors are no more, and they must now undertake all the responsibilities outlined above with little or no additional support.

Realistic alternatives

If you have two opposing self-represented litigants, neither of whom understand the law and are bogged down in the details, and a judge who knows nothing of the case until he reads the papers shortly before the hearing, you are asking for a whole host of problems.

Fundamentally, there is a misconception that judges know it all when they cannot possibly be expected to. And there is a real danger that in this new era pressured judges are asked to rule on points they simply don’t know about.

Of course there is no substitute for legal aid. But if continuing with it is truly a political and economic impossibility, we need to look at alternatives that go beyond the gimmicks being touted.

One such alternative was suggested by Nicholas Cusworth QC, chair of the Family Law Bar Association, who believes law should be established to provide a default regime for the division of assets when relationships break down.

In my mind there is very good reason why we don’t have community of marital property in this country, and that is it ignores needs. Millions of people would be affected and left worse off by such a change, likely burdening the welfare state with far more single parents.

I have another suggestion, one that might just work. What if we changed the costs rules in family cases and got rid of the ‘no order’ principle? This would create an opportunity for family lawyers to take up cases on a ‘no win, no fee’ basis, with the losing party paying a costs order set at the judge’s discretion. There is currently little risk in litigating, but if that risk were to return it would lead to lawyers being far more circumspect and reduce the number of cases reaching court.

Whatever fills the gap left by Legal Aid, it needs to do so quickly and effectively. And although we live in technologically-advanced, 24-hour society; I do not believe a mobile phone app quite fits the bill.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known family law solicitors and divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Steve says:

    The answer is simple, lets simplify the whole system and assume it 50:50 in all respects. No need for prolonged and costly discussions and arguments proving ones future needs.
    It so simple!

  2. LegalExpert says:

    I basically agree with Marilyn here that acces to justice is being denied.
    But we mustn’t forget that for however many decades, access to justice was effectively already being denied to half the litigants in these cases anyway, namely fathers.
    It comes as no surprise then that fathers who have had to deal with lawyers from hell and abusive ex-wives are celebrating these cutbacks. Finally, the playing field might be a tiny bit more even in that mothers too will have to fumble their way through as LIPs.
    This is to say nothing of the fact that legal aid in family law matters is 9 times out of 10 being abused; for too long, taxpayers have picked up the bill for the implacable hostility that moms have wrought upon dads.
    Marilyn would have a lot more sympathy here if she proposed how the wastage of billions of pounds by mothers who drag out cases simply as a form of exercising control and power would be dealt with…..

  3. Marilyn Stowe says:

    Steve/Legal Expert
    Thank you both for your comments. You may be interested in the comment I have left on John Bolch’s web site Family Lore, where he discusses my article.
    “Hi John
    Thanks very much for your post. You make some interesting points and in particular, you ask what is a win?
    I should make it clear that I am not a supporter of what has happened to costs in civil litigation in terms of no win no fee. I believe it has got wildly out of hand. In any event, family law is and will always remain a different area entirely and different principles should apply.
    1.  There was much criticism of the previous rule where costs followed the event usually directed at the size of the successful lawyers’ fees. I think controlling the recoverable costs from the other side, is a different argument.
    The ‘no order’ rule however has had a dire impact and i believe to be generally more flawed than the old rule. I believe there is a direct correlation with the introduction of the ‘no order’ principle in financial cases and the rise in self representing litigants across the family courts. There is no incentive to many people where money is tight to instruct a lawyer if there is no realistic prospect of recovering costs.
    2.  I am constantly hearing of cases where the weaker party has ‘succeeded’ in that she (usually it is the wife) has easily beaten the offer made by the financially stronger party, in fact the stronger party may have made no offer at all, but the result for the wife is ultimately skewed by the ‘no order’ costs rule. Only in the most rare of cases is a party ordered to pay costs now. This is unsatisfactory in terms of time and stress for the weaker party, who had to incur substantial costs to litigate to a final hearing and sees her costs taken out of her share.
    It is also unsatisfactory for the swifter disposal of cases to clear a backlog.
     A change in the costs rules, would equally apply a risk to the weaker litigant who rejects a reasonable offer that is less or the same as at the final hearing.
    The rule that costs follow the event still applies to Inheritance Act and Trusts of Land Act cases.
    All these cases are examples where both parties can still afford legal representation.
    3. In less well off cases, i.e. the vast majority of people, the problem is even more acute. Consider an average but typical case where the wife wishes to stay in the house, she can only work part time, she has underage children. She could apply for spousal support and a transfer of property order or a Mesher order. Husband earns more and can afford a lawyer. Wife doesn’t qualify for legal aid (shortly to become irrelevant anyhow) and she has insufficient income/ no available capital to pay a lawyer. Husband cant afford to pay two sets of fees. How does she obtain legal representation without a sale of the house? A lawyer wont act if he has no prospect at all of getting paid. Husband presses wife for a sale. He wants his share of the equity. She wrongly believes the court will split the equity 50/50 and ignore her needs.
    She agrees to a sale and will probably end up in council accommodation (if she can get it) with the children, ultimately living on benefits. I can easily see such cases rapidly increasing when legal aid is abolished unless something is put in it’s place.
    If the costs rules were changed, the playing field would be evened up, lawyers would be more likely to represent the weaker party where litigation was inevitable and cases would thus be more likely to settle. At the moment as there is no compelling incentive to settle, courts are bursting at the seams.
    Finally, I agree with you about names. ‘Streamlining,’ ‘ gateways,’ ‘ pathways,’ ‘ modernising’ etc:-  the fundamental root problem is about enabling swift access to justice, usually through the court, advised and represented by specialists for all who require it.  
    Best wishes

  4. DT says:

    Marilyn & LegalExpert
    Good Morning
    Marilyn: I think you’re right. It’s not ideal, but we know that. Given the situation we’re in with Legal Aid being all but a thing of the past, access to justice too will become a relic of a bygone era if something doesn’t change – and change fast. What’s more, I think your suggestion would also free up a lot of court time and so more cases could be heard quicker which has got to be a good thing.
    LegalExpert: I think you have made some interest points both here and on Marilyn’s Miller v Smith article.
    You are right in that some people abuse the Legal Aid system. Yes, this sadly does happen – I’ve seen it happen and it has frustrated me.
    I think public funds should be spent wisely and I have always tried to think along the lines of, “If this was my money, how would I think it best to use it?”
    I also think some fee earners have, at times, not been as responsible as they might have been with public funds, which is testament to the problem we find ourselves in today.
    Of course, Legal Aid is not the only area of public spending with which people have been careless or perhaps even ’cavalier’, and I’m now thinking about the NHS.
    I’m ‘married’ to a Dr, and I when I hear about prescriptions being ordered and not used or ‘stockpiled’, patients failing to turn-up for appointments (habitually) and a general lack of respect for scarce resources, it does make me very cross, not to mention sad.
    These great public institutions which were set up after WWII are struggling and soon to become extinct and I think we need to utilise whatever precious public resources we have left with the utmost care and respect, because we’ll end up like America, where all needs (except in the most extreme cases) have to be met by the individual.

  5. 205 says:

    Why do you feel queasy about more information and guidance being given to people facing divorce,” you seem a little condescending in implying that using IT in this aim is gimickry and that non lawyers could in no way be expected to do anything for themselves in addressing their situation anyway and furthermore would rather tiresomely get in the way of your daily business in the courts, “access to justice” isnt directly or necessarily equivalent with “finding a way to pay lawyers”. For divorcing people of average means and intelligence the challenges they face are that the associated legal process is arcane and the costs of hiring a professional to navigate it are ruinously high. Something which helps them to be more self sufficient and optimise their use of very expensive legal professionals promotes access and is to be welcomed outside your profession.

  6. Marilyn Stowe says:

    Our law is beneficial to all because it is based on fairness and flexibility but equally it is difficult to apply. A more rigid law such as exists in Europe would make it easier to apply but result in major injustices for the weaker party.
    How can any app do the job alone, when I know from experience that every person’s case is different;- every couple’s financial position differs and their respective income and capital needs differ from each other and different factors within the law will apply, so no outcome can ever be the same.
    I am a trained lawyer with particular knowledge of family law and its operation. I’ve come up against self represented litigants and honestly don’t think any one of them can match a lawyer for training and experience and/or expect to obtain the same result.
    I liken it to trying to pull out my own teeth or operate on myself.
    So I believe that the answer is that everyone should be entitled to legal advice and representation in court, irrespective of means. I question why we have spent so many billions on the Olympics and yet abolished legal aid. The poor and the weak as always, fare the worst.
    In this post, I have tried to come up with a practical solution to ensure that as far as possible all parties can be protected and represented.
    I’m not being condescending, but I’m fed up with the government selling gimmicks, apps, pathways, gateways and non lawyer mediation along with self help websites, not one of which gives what is really needed:- legal advice and representation in court to ensure even a fair outcome for the parties.

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