LASPO and litigants in person,

Family Law|September 23rd 2014

I have been looking in a little more detail at the Bar Council report assessing the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) on the justice system a year after implementation in April 2013, which was mentioned here in this post. LASPO, of course, abolished legal aid for virtually all private law family matters.

The report is based mainly upon a survey of and interviews with practising barristers. I was particularly interested to read what the respondents had to say regarding LASPO and litigants in person.

Of course, it comes as no surprise whatsoever that a large number of the respondents reported an increase of litigants in person (‘LiPs’) in the family courts. It was, however, slightly shocking that such a high proportion (88.36 per cent) found this to be the case, with only 9.52 per cent reporting the same number. In other words, wherever you go in the family courts you are likely to come across more LiPs than pre-April 2013 levels.

The report then goes on to look at some of the key issues raised by those respondents who had represented a client against an unrepresented party. This is surely the crux of the matter, and I will go through all of the eight issues listed in the report:

  • Increase in workload and inability to focus on the interests and needs of your client – Something that I’ve not see mentioned elsewhere – when a lawyer representing someone at court has a LiP on the other side, that lawyer’s workload will inevitably increase, to the detriment (and possible expense) of the lawyer’s own client.
  • Difficulties with appropriate disclosure – An obvious one: getting a LiP to disclose the documents they are required to disclose can be a nightmare. The LiP is naturally reluctant to make such disclosure (they may not see why the other party should be entitled to it), and wants to keep his or her information private.
  • Challenges focussing on key relevant issues – I think this refers to the common problem with LiPs that they often don’t understand what issues are relevant to the case, instead concentrating on issues that simply are not relevant (often aiming at ‘getting back’ at the other party, rather than moving forward with the case).
  • Longer cases, including more time in court and more delays due to unfamiliarity with procedure and reluctance to negotiate outside of court – Delay is one point that has, of course, been mentioned many times. As to reluctance to negotiate, I can certainly recall this from my own experience – LiPs treat lawyers on the other side as ‘the enemy’, and often don’t want to talk to them. However, with lawyers on both sides a very large proportion of cases are settled by negotiation outside of court.
  • Being expected or required by the courts to shoulder the entire burden of administrative tasks which would usually be dealt with by each party as required – Another unfairness, in particular to the lawyer’s client, who has to pay the extra fees involved for the lawyer doing the work.
  • Physical and verbal aggression from LiPs directed towards counsel – Again, something that many lawyers have unfortunately experienced from time to time (thankfully, I was never subjected to direct physical aggression, but I certainly remember verbal aggression and threats).
  • Increase in cost for represented party due to longer running cases and increased administrative requirements – See above.
  • Failure of LiPs to follow court directions and adhere to court timelines – Again, an obvious one, but a very common problem, caused not just by wilful default on the part of the LiP, but also by misunderstanding of procedures and court orders. I can’t see this ever improving much, no matter how much information LiPs are provided with.

It all paints an extremely depressing picture, and one which surely will not get better unless legal aid is restored – something that must be extremely unlikely.

I should finish by saying that none of the above is intended to denigrate litigants in person. They are faced with the hugely daunting and difficult task of representing themselves in unfamiliar surroundings and in situations of great stress. They are not the villains in all of this – they are the victims.

Photo by Alwyn Ladell via Flickr

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Comments(7)

  1. George Statingfield says:

    Bar Council report – Well there we go then – All doom and gloom without loads of barristers and solicitors being paid for by the public purse…

    Actually cases are being heard faster and being dealt with more quickly by most courts as Judges do not have to deal with the unnecessary delays and obfuscation of many lawyers.

    This is just another jobs for the boys report….

  2. jamesP says:

    Agreed George.
    If we did away with the lawyers alltogether it would speed things up no end.
    Time is wasted by lawyers manipulating the courts, the victims are the litigants and of course the children.
    Its a vile trade.
    But let them pat eachother on the back.

  3. Mike H says:

    In my experience LA’s regularly and probably deliberately ignore court timelines to put pressure on litigants, they are late filing documents as a matter of course. Regarding an unwillingness to negotiate outside of court, many Litigants when facing LA’s simply do not trust the “opposition” because prior to court proceedings they have been faced with the might of Social Services juggernaut of “Child Protection Services” and become used to the spin and lies of social workers and their superiors who use the tried and tested templates of their trade to destabilise rather than help families in difficulty. Faced with this mistrust and fearing for their children is it any wonder they are reluctant to negotiate?

  4. Carol Bird says:

    Negotiation with parents should be the sole responsibility of the Childs court appointed Guardian, appointed by the court to overlook all court matters that the best interests of the child are served,
    NOT as generally goes on in these courts, whereby the Guardian is seen by most parents as hand in glove with Social Service legal and not to be trusted

  5. Luke says:

    The fundamental problem as I see it is that the adversarial system does not work in Family Court, the general public simply cannot afford the ridiculous costs involved – the only people guaranteed to win are high priced lawyers.
    .
    Marilyn Stowe has talked of Arbitration and I think that is the way to go – some form of compulsory court arbitration should massively cut costs and produce a much fairer system. This would of course encompass the removal of the silly expense of barristers in Family Court.
    .
    I don’t have much sympathy for John’s complaints, the whole thing has been brought about because a percentage of lawyers (obviously not all lawyers) saw Legal Aid as a ‘gravy train’ and abused it – the legal profession should have self-policed Legal Aid and they just didn’t.

  6. Nordic says:

    As I have said before, what is needed is a legally binding regime for matrimonial property division. If you prevent people from fighting over asset division, you massively reduce the burden on the courts and the associated problem of the increase in LIPs. Most other jurisdictions have figured out how to do this and in many cases do not even have a need for dedicated family courts. The current stress on the court system is a problem of the systems own making.

  7. Gentlergiant says:

    Nordic, you may have hit the nail on the head.

    Another benefit that having a clear system for the division of property would give is the certainty of security prior to and during marriage that is currently not enjoyed by husbands, in the main, and wealthier spouses of whichever sex.

    Nothing in the report is that surprising, but noting increased “verbal aggression” towards opposition counsel is the least of it. The victims of the system are simply defending themselves against life-threatening hostility, and a willingness by some legal parties to ensure an unfair result in clear contravention of their stated codes of conduct.

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