A couple of days ago I wrote a post here in which I mentioned a recent survey of nearly 500 magistrates which revealed that 46 per cent of the people seen by them in private family courts are now representing themselves, and that almost of all of the magistrates questioned said they believed that self-representation was having a negative impact on the court’s work, leading to delays and potential unfairness if one parent is legally represented but the other is not.
A commenter on Twitter took exception to the suggestion that litigants in person cause delays, stating that delays were caused by courts failing to act and by having to wait six months for Cafcass reports. Whilst they have a point, certainly in respect of Cafcass reports (although the recent Ofsted report for Cafcass found that it has been successful in meeting its targets for the filing of reports in private law proceedings), courts and lawyers across the board have reported that the increase in litigants in person since the virtual abolition of legal aid for private family law matters has led to further delays. If one analyses the issues that the courts face when dealing with litigants in person, there must surely be some truth in this. Hearings inevitably take longer, and this leads to cases being put back in the court lists.
Let us look at the three stages of a court process: prior to the hearing, at the hearing and after the hearing:
- Pre-hearing – The court must check that the necessary procedure has been followed, for example that the correct documents have been filed with the court and that the papers have been served upon the correct persons, giving them the required notice of the hearing. Obviously, if a party is represented by a lawyer then the lawyer should have dealt with all of this. However, if a party is unrepresented then it is far more likely that the correct procedure has not been followed. How many litigants in person know, for example, that their financial remedies application must be served upon the landlord or mortgagee of any property involved? If the correct procedure has not been followed then the hearing may have to be adjourned to a later date, taking up more precious court time.
- Hearing – Again, the litigant in person is likely not to know the procedure, for example when it is not the final hearing and the court is not interested in hearing full arguments. The judge will have to take time to explain this to them. Similarly, there is the common problem of litigants in person introducing arguments that they think are highly relevant but which in fact are not. Listening to such arguments and explaining why they are not relevant again takes time. Then the court will have to explain to a litigant in person the meaning and implications of any orders that it makes. All of this can mean that hearings that would have taken only a short time with lawyers can take much longer, inevitably leading to shorter court lists, or later hearings having to be postponed.
- Post-hearing – Despite the best efforts of judges to explain, litigants in person often do not understand what is required of them to comply with the directions of the court or to implement the order that the court has made. As a result, cases may not be ready for future hearings, or may have to return to the court to sort out the implementation of an order.
Against the above, it could be argued that lawyers can also cause delays, for example by using elaborate arguments in court. However, the courts can be far more robust when dealing with this – after all, lawyers should know what they are doing, whereas that is not always the case with litigants in person.
Of course, none of the above is intended in any way to denigrate litigants in person. They obviously cannot be expected to know what lawyers know. I am also not saying that litigants in person are the cause of all delays, or of the worst delays – there are certainly other issues with the system and many family lawyers, including myself, have been complaining about delays for years, particularly with fewer resources being devoted to the courts and to the family justice system generally.
Photo of Lady Justice over the Old Bailey by Joe Dunckley via Flickr