Crime committed against you? Contract breached? Dispute with the father of your children regarding contact? In these circumstances, and in many other, you are entitled to seek legal recourse through legal proceedings. Ordinarily, an individual might seek legal counsel from a solicitor with experience in the field and whom have received the relevant training. Others might feel confident in dealing with the matter themselves without need for legal advice, or alternatively they are not in a financial position to instruct a Solicitor. If an individual wants to, they have a right to be able to represent themselves and conduct their own legal proceedings. Should an individual decide to represent themselves in legal proceedings they are termed as ‘litigants in person’, and will be able to prepare their own documents, sign their own Court paperwork and appear before a judge. Litigants in person are now regulars in family proceedings, whether it relates to divorce, financial matters, children or injunctions against their ex partner. There has been one main influencer in the raise of litigants in person.
Introduction of Legal Aid, Sentencing and Punishment of Offenders Act (2012)
Legal Aid was first introduced in 1949 to allow access to legal aid through providers whose fees would be publicly funded. The purpose behind it was to allow access to justice for all, and to include those individuals with a low income to have access to a Solicitor or barrister, and for the Solicitor and barrister fees to be met by the taxpayer. In the 80’s the use of Legal Aid became a political issue at a time when it was becoming more prominent and therefore the cost to the Country getting higher and higher. In the 80s the government therefore started to make the first changes to legal aid which overtime culminated into the LASPO Act 2012. The restrictions that the government has enforced to an entitlement to legal aid has meant that the previous access to justice is reduced to those that cannot afford legal fees, and their options are to either represent themselves, or to not access justice at all.
It would be unseemly for people to have no accept to justice at all, and therefore beneficial that individuals can represent themselves should they need to. It is these legal aid cuts which have therefore seen the rise in litigants in person. This was anticipated by the government when making the changes, but they stated it gives “the litigants ability to present their own case.” This does not take into consideration that prior to these changes being made, the litigant had the chance to bring their case utilising the expertise of those properly trained with the option of Legal Aid. In commentary, the Family Law Bar Association noted “pre LASPO litigants in person…were more likely to be employed people with some level of ability to articulate issues and engage in the court process. The removed from scope of all private family cases…has left those who are least able to represent themselves having to engage in the court process without the benefit of legal advice. The MOJ naively assumed that the system could absorb more LIPS without adverse effects as long as more information was made available. This belief fails to recognise the limitations of the litigants involved”.
As Sir James Mumby stated “previously we had a lot of litigants in person who were there through choice. They tended to be people who had a particular point of view, but who understood the case, were articulate and had the confidence to appear in court. We now have a lot of litigants in person who are there not through choice and who lack all those characteristics.” What is important to note is that litigants in person can adequately represent themselves in legal proceedings if they feel they have the skills to do so. What is disturbing is that most have had the opportunity to chose whether to represent themselves taken away and have to represent themselves because the only other option is to not be involved in legal proceedings at all.
Is there a place for litigants in person in family law?
Statistically, in family law cases, the number of cases where both parties are represented have almost halved, to the point where it is now an anomaly for both parties to have representation from a solicitor, and this is a drastic change. It may be that these individuals now feel comfortable in representing themselves, or as above, they are no longer able to afford the services of legal representation and must therefore go alone.
Having both parties represent themselves in family law cases does have it’s difficulties, as the relationship between the two parties has either had to have broken down entirely where is comes to divorce, or where it has done so in any event when it comes to disputes regarding children. Previously, legal representation would have provided a buffer to these emotions and would have provided an objectivity to their clients. These skills are removed when an individual represents themselves, and this can lead to a rise in courtroom tensions. This can be aggravated further when there are particularly sensitive issues being brought before the Court. Whilst other areas of law can offer protection in similarly sensitive matters, there is no similar approach in family law matters. This is no more evident when considering the case of P v D, a wife and two daughters were subject to cross-examination from a father serving 17 years in jail for repeatedly raping his wife. This was an understandably harrowing experience for all involved and is certainly a situation that can be learned from. It is clear that, if the trend of litigants in person continues to rise, the Court need to establish extra safeguarding measures to prevent something similar happening again. This situation provides a strong example of where individuals are being failed by not being able to access legal representation, and where they will suffer by having to represent themselves.
Court proceedings in family law are often stressful, and most will want proceedings to be dealt with as swiftly as possible. There are already the delays from the family court’s themselves, who are simply overwhelmed with the number of cases they face. These delays can be enhanced by having a litigant in person involved in a case. The simple reason for this is because they lack the knowledge and experience on how to bring a case succinctly, with all the relevant information required of the Court and having a general lack of understanding of the processes and procedures involved. This is not unexpected, as the practices and procedures have been designed with Solicitors and barristers in mind and those that are in the profession. This can therefore lead to delays in hearings themselves, or to hearing not being able to go ahead as the parties are not fully prepared. In the alternative, if the other party does have legal representation, it may be left to them to ensure Court requirements are complied with, which will only seek to increase their fees which their instructing party is responsible for. There seems a level of unfairness here that the person that choses to be legally represented may face an additional fee because their opposing party has chosen not to do the same.
How can we improve the law for litigants in person?
Mr Justice Hickenbottom has provided further commentary on how litigants in person provide significant and unique challenges to the judiciary as outlined above. He stated that perhaps it is not the litigants in person that are the issue, and that the system was the problem. His solution for this was for judges to enable and empower the needs of litigants in person to ensure the system was adapted to suit them, rather than the current approach. Lord Wolff once warned against litigants in person regarding them as “a problem for judges and for the court system rather than the person for whom the system of civil justice exists” noting that the “true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people.” It would therefore seem that if the Court was to take on the considerations of Mr Justice Hickenbottom everybody involved would be grateful. As it stands, litigants in person are still asked to represent themselves in a somewhat alien environment, often in cases which are of utmost importance to them. By adapting the system, it could take away some of the injustices that cuts to legal aid have provided.