Litigants in person changing the nature of court, district judge claims

The role of judges is changing as ever-greater numbers of people appear in court without a lawyer, a senior district judge has warned.

Harold Godwin is the recently appointed President of the Association of Her Majesty’s District Judges. He believes the continuing surge in litigants in person is forcing judges to spend more establishing the facts of a case during proceedings, Local Government Lawyer reports.

Judge Godwin said:

“Being a judge in the twenty-first century is becoming considerably more demanding than ever before; because the nature of judging, particularly at first instance in civil and family cases, is changing in character. Many more litigants are representing themselves without the legal knowledge and skills possessed by the professional lawyer.”

He added:

“Nowadays, district judges are often required not only to decide the outcome of a case but also, to tease out from the parties the issues, then establish the facts, ascertain the area of law involved and then determine the outcome following statute and common law.”

In addition to placing an additional strain on judges, such cases also increase expense and strain on the system because litigants in person cannot speak to opponents outside court like professional lawyers.

Judge Godwin explained:

“Those discussions often find solutions to cases to avoid the expense and time taken by a full court hearing. The result is more fully contested final hearings and, often, less favourable outcomes for the parties. Less favourable in the sense that judges are always constrained to determine cases in the way the law requires whereas a negotiated settlement often enables the parties to settle their differences in ways judges are unable to employ.

He continued:

“For example, sometimes a simple apology for what has happened and a resolve to deal with one another differently in future may resolve a case but a judge could not order that to happen.”

In March Master of the Rolls Lord Dyson issued guidance stating that legal professionals should use the term ‘litigants in person’ consistently, avoiding the alternative name ‘self represented litigant’.

The latter term is, says the guidance:

“…unclear in its scope, as it can variously be understood to suggest that individuals are conducting the entirety of legal proceedings on their own behalf, that they are only conducting court advocacy on their own behalf or, that they have themselves obtained representation i.e., secured the service of an advocate.”