When the government in its infinite wisdom abolished legal aid for most private law matters it will no doubt have had in mind the effect that this would have on litigants who are unable to afford a lawyer. However, questions have been raised in various quarters as to whether the government fully considered all of the implications of what it was doing.
For example, how much thought (if any) did the government give to the effect of the abolition of legal aid upon the courts? It may have occurred to ministers that more litigants in person might mean more work for the courts and more delays, but there is another issue: the job of the judge is made considerably more difficult without lawyers. Lawyers will (or should) ensure that all relevant evidence is put before the court, and that all relevant arguments (legal or otherwise) are raised. Without this assistance, the judge may find it difficult to deal with the case, and may even have to proceed (knowingly or not) without all of the information he or she requires to come to a fair and appropriate decision. In short, justice may not be done.
Only recently I wrote here of Mr Justice Mostyn’s comments in Re TW & TM (Minors), where all of the parties had been self-represented at first instance. He said that this had led to the court making two erroneous decisions, due to the lack of assistance from lawyers.
Now another judgment has been published in which the judge, this time Mr Justice Moylan, has made similar comments. PS v RS concerned a husband and wife who were both Egyptian nationals by birth. The husband took divorce proceedings in Egypt and the wife subsequently applied for financial relief in this country. The parties largely acted in person during the course of the proceedings, although when the matter went before Mr Justice Moylan the husband was represented by counsel and the wife by a McKenzie friend.
I’m not going to go through the judgment but obviously this was no straightforward case, particularly with its foreign element. There was also an issue as to whether the husband had other resources which he had not disclosed. Clearly, in such a case, the judge needs as much assistance as possible, in order to deal with the case properly and reach an appropriate result.
However, that was not the case here. At the beginning of his judgment Mr Justice Moylan had the following to say:
“In my view these proceedings have clearly demonstrated the difficulties which can be created for parties and for the court when the parties are acting in person. The court is not in a position to conduct the litigation for the parties and has to retain sufficient independence from the process, both to remain an impartial tribunal and to be seen as an impartial tribunal.”
He went on:
“I refer to this at the outset of this judgment because, in my view, the evidence in this case is not that which would have been available if the parties had been represented, both in terms of their own cases and in terms of the evidence which would have been at least sought from the other party. This undoubtedly makes the attainment of justice more difficult.”
One solution that has been proposed to resolve this problem is for the court to adopt an inquisitorial, rather than an adversarial, approach, whereby the court takes on the role of the lawyer, investigating the facts of the case, rather than simply deciding between the arguments put forward by the two sides. However, Mr Justice Moylan was quick to dismiss this idea, due to time constraints. He said:
“Given also the volume of other cases, the court is not able to take on the role of inquisitor, certainly not to the extent necessary to replicate the forensic scrutiny which legal representatives would bring to bear during the course of proceedings.”
So ironically the extra pressure on court time caused by the legal aid cuts may have made it more difficult for the courts to use a method that may help ameliorate one of the effects of the cuts.
Whether we like it or not, lawyers are an essential part of a fair and efficient system of justice. I expect that in the coming months and years we are likely to see more judicial comments similar to those aired by Mr Justice Mostyn and Mr Justice Moylan. However, whether the government pays any attention is another matter…
The full report of PS v RS can be found here.