I’ve written more than once on this blog about the rise of the ‘litigant in person’ – people who appear in court with no legal team and represent themselves. Once a relative rarity, something strictly for eccentric amateur lawyers only, the numbers of litigants in person is widely expected to shoot up next year with the effective end of Legal Aid on March 31. Suddenly, the majority of people with everyday legal issues will be unable to afford a solicitor – and that certainly includes family law staples like divorce settlements and residence/contact with children. It’s already happening: according to a sad article in The Guardian today, hard-pressed advice centres across the country have begun turning away people seeking legal advice.
Legal circles are now braced for a flood of lawyerless litigants (estimated at over 200,00 by the Law Commission) and there is a lot of foreboding about the effect this could have on the courts. Despite their popular image as walking repositories of legal wisdom, judges do not know everything and rely, to a greater extent than you may think, on the barristers and solicitors before them to point out the relevant case law.
Most litigants will be quite unable to do the same and so judges will have to find the applicable law themselves, a potentially quite time-consuming process. I am sure we will also see cases being further slowed down by the need to explain developments and procedures to baffled litigants in person. The courts can seem both arcane and intimidating to the uninitiated – that is, after all, what solicitors and barristers are for: to provide expert guidance.
This is a recipe for tension. I have no doubt that most legal professionals will follow the guidance notes issued by the Law Society earlier this year urging solicitors to treat litigants in person “with courtesy” and in a “manner of which the courts would approve”, but if you are on the opposing side, how do you not try and take advantage of the litigant in person’s lack expertise in order to press your case? That is your job. Litigants in person too will also make allegations against the lawyers, the judge – anyone who doesn’t agree with them, usually because of a lack of experience and lack of knowledge of the law. Complaints against lawyers and judiciary I’m certain are due to rise.
Judges utmost professionals though most of them are, will certainly struggle at times with the problems caused by litigants in person. However in a fascinating defamation case last week, Mr Justice Tugendhat turned his formidable attentions to this very question. In his ruling, the senior media judge noted that the claimant, Cornelius O’Dwyer, had told the court that he was:
“…a litigant in person with no legal training and will seek appropriate guidance and directions from the court.”
The judge went on:
“It is not uncommon for self represented litigants to invite the court to act as a source of guidance. The court is under an obligation to do justice…But the English legal system is adversarial. The court employs no legally qualified staff to assist the judge. Not only is the court without any means to provide such assistance, the court is also obliged to be impartial. A litigant who explicitly seeks the guidance of the court in the way that Mr O’Dwyer does is seeking what he may suppose to be free legal advice. But he is seeking it from a source which is unable to provide it, and it is certainly not free. The hearing before me has generated very substantial lawyer’s fees, and someone has to pay them.”
Mr Justice Tugendhat has a reputation for strictness and here he couldn’t have been tougher. In these incisive comments, we see a bright spotlight being shone onto a fundament problem with the litigant in person helplessly throwing him- or herself on the mercy of the courts. The courts are an adversarial system. Judges aren’t there to help, assist and advise one party. That is wholly at odds with their function. And this particular litigant in person with his obviously hopeless case got very short shrift indeed. If he was expecting sympathy, he got none whatsoever.
Yet family judges, on the other hand, are currently being placed into an intolerable situation, unlike their brother judges in the civil courts. Like it or not, because family law requires consideration and care for both sides, and a duty to adjudicate an outcome which is fair to both sides as opposed to making a finding for one party against the other, the judges are, like it or not, having to adopt a more inquisitorial approach – to elicit the facts from both parties, and then adjudicate an outcome. They are at the same time, making a rod for their own backs, as more litigants turn up completely clueless about their legal position and many will begin to litigate hopeless cases that lawyers would have weeded out and never brought near to a court door, let alone inside it.
As civil judges at the highest levels have pointed out more than once, the Family Division is part of the whole court structure. The Family Division does not stand alone. So, is it right for family judges to be forced to become more inquisitorial in an adversarial court system? Are they actually being required to take on too much?
Should they not be adopting a rather more forthright position akin to Mr Justice Tugendhat, but not to the hapless litigants before them but rather to the Ministry of Justice?