John Bolch on litigants in person causing delays

Family Law|June 5th 2014

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 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Dominic P Rigg says:

    Dear Sir,
    Whilst I agree with much of what you say about litigants in person the other aspect of wasting time is the manner in which the courts themselves are operating. I was appearing with LIP this week as a Mackensie Friend. We were instructed to be at the court for 9-00am. We actually got into the hearing at 2-30. Moreover as the other party was legally aided this represents a great deal of public money wasted and still no settlement of the dispute.
    If all of that is not bad enough neither the judge or the other side’s solicitor had a copy of the CAFCASS Report.
    There was also anecdotal rumors that case files had gone missing (not in our case) I pleased to say. Nevertheless the system is a shambles. Why instruct people to be at the court before the ushers arrive. It is a nonsense that I am mystified by.
    D P Rigg

  2. Lucy Reed says:

    I can certainly say that at our local court the 30 min allocation of time for first hearings has been increased by 50% to 45minutes since the legal aid cuts. That doesnt seem like much but of course it means less cases can be dealt with in one sitting and an extra half day is required where one was previously enough. The problem is not so much the cases with a litigant in person as the cases with no lawyers at all – the judge cannot rely on a lawyer to explain, negotiate, clarify issues or identify the law or to draft orders – but has to fit this in to her working day.

    • Paul Apreda says:

      John will know that I have a view about the number of individuals within the Family Justice arena who are now commenting on the issues of delays caused by LIPs. Whilst I accept that hearings may need to be extended to cope with explanations of procedure to LIPs I would argue that is a justifiable consequence of the UK Governement’s decision to remove legal aid. Courts & professionals having greater obligations to explain proceedings must be in the public interest as too many litigants (represented or not) in the past have commented to our charity that they felt that the system was opaque and they had little sense that their concerns or issues were actually being heard. One represented litigant shared with us that he was told to shut up by his solicitor because he didn’t need to understand as she knew what she was doing.
      There shouldn’t be any delay to the system brought about by LIPs as there are far fewer cases coming to Court in Private Law so one counter balances the other.
      Whilst a LIP MAY cause a 30 minute directions hearing to turn into a 45 minute one they are unlikely to be responsible for cases having 6 or 7 ‘Final Hearings’ and running on for years without resolution. They also dont cause Cafcass / Cafcass Cymru to take 4 months to write a Section 7 report.
      A further cause of delay is the Family Courts reluctance to make Orders when to do so could certainly be justified in relation to the ‘delay principle’.
      There is also the delay caused by a failure to act robustly when dealing with false allegations and statements to the Court. A Senior Family Court judge recently said to me ‘I know that people come to my Court every day of the week and tell me a pack of lies – but what can I do about it!?’ Clearly the answer is to deal with this as Perjury or Perverting the Course of Justice.
      Finally – and sincere apologies to all the Family Court magistrates for whom this is not the case – BUT in our experience Magistrates are far less likely to act robustly in the face of clear intransigence by one party or another – whether represented or not. Whilst that may not histrically have been an issue in London & the South East where 6% of cases were heard by magistrates – in Wales that figure has been over 60% for some time. With the new allocation protocols under the Single Family Court I look forward to hearing comments from others when England ‘catches up’ with us in the west!

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