The cost of saving: how litigants in person are denied access to justice

Jul 31, 2018

Written By James Cunningham

Legal aid cuts have been making headlines in recent years, and many organisations have responded to the problem by introducing voluntary measures. James Cunningham of Nottingham Law School talks through the issues faced by litigants navigating the legal system for the first time.

The legal system of England and Wales is in crisis. This is not news to anyone who has taken so much as cursory interest in it in the past few years. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has gutted access to legal aid, and slashed rates where it is paid. Recent media attention has been focused on the recent strike by the Criminal Bar Association, but civil courts are under similar pressures. In more than a third of cases before the family courts neither party is represented and that number is likely to grow.

Litigants in person can easily find themselves lost in a confusing system with little idea of what to do and who can help them do it. The court system was designed by and for lawyers and to those with a legal education it may make some sort of sense, but for those with little or no legal knowledge it is opaque and frightening. Accommodating these litigants puts an extra workload onto judges and court services already buckling under the weight of successive budget cuts.

As a volunteer for Nottingham Personal Support Unit (PSU), I recently accompanied a client to a child arrangements hearing. The client was the respondent to an appeal brought by their former partner against a child arrangements order. It was obvious that while the parties disagreed, both were motivated solely by what they believed to be the best interests of their children. There were no allegations of abuse, but both had expressed concerns about the others ability as a parent. It was equally obvious that neither party fully understood the legal procedure in which they were involved. The appellant’s case was based on a feeling that they had not received a fair hearing by the magistrates at first instance. There had been no exchange of witness statements prior to the earlier hearing, neither party was aware that they were able to question each other’s evidence and neither had prepared to do so. For this and other reasons the appeal was granted, and the case was remitted.

I can only hope justice will be achieved at the second attempt, but with a modicum of advice at an earlier stage no second attempt would be necessary. Had the parties known beforehand what was expected of them the procedural irregularities would likely not have occurred, or at least an objection to them could have been raised at an earlier stage. As it is, two people are left preparing to repeat of a highly stressful experience, and the future of a young child is uncertain for several months. It is tempting to lay the blame for this solely at the feet of the magistrates at first instance, but this may be unfair. When faced with parties keen to see a matter resolved the temptation to press on regardless must be strong indeed, particularly when the alternative is to take up court time that is becoming a luxury resource.

This case is not an isolated example. Research conducted by Ipsos MORI on behalf of the Law Society demonstrates that those seeking to resolve a legal dispute who do not have access to advice at an early stage face a much longer slog than those who do. This slog has a real human cost; for many PSU clients a month’s delay to resolving a case may mean the difference between endurance and poverty. Court Orders are easily misunderstood and therefore not complied with. Judges have the job of trying to sort out the legal basis of the claim for each litigant in person, often without much written evidence to assist. Used to relying on a coherent legal argument being presented at the start of the hearing, judges can find themselves conducting ad hoc inquisitorial proceedings or acting as an impromptu mediator between the parties.

The obvious solution is more money for both Legal Aid and the courts themselves, but to call for a return to the high-water mark of availability of Legal Aid seems optimistic to the point of naivety. The reintroduction of funding for early advice in housing and family cases would be a useful step, and one which may save public money and reduce the burden on the courts by encouraging swift resolution of such problems. The fact that Legal Aid is not automatically available in cases involving children, particularly child contact cases, is little short of appalling. It is difficult to see how the interests of a child at the centre of a dispute can be safeguarded if the parties do not have access to legal advice. If significant increases in Legal Aid are not forthcoming, then courts must adapt to accommodate increasing numbers of litigants in person. In all fairness to HM Courts and Tribunals Service some steps have been taken in this direction (for example, online court forms are being rolled out, which are much easier to navigate than their paper counterparts). For courts to evolve to become more user friendly will also cost more money, but the alternative is to risk access to justice for those who cannot access legal advice.

Pro bono services and voluntary service providers can plug a few gaps in public funding but cannot hope to provide a satisfactory alternative. Those lawyers whose skills and specialisms are most in demand have been hit hardest by changes to Legal Aid and may no longer be able to afford to donate their time. Services such as Citizens Advice or the PSU are stretched thin and are limited in the services they can provide. The PSU, for example, provides practical and emotional support, but cannot provide legal advice. University law clinics, such as the Nottingham Law School Legal Advice Centre provide valuable advice to their clients and clinical legal education for students but are only able to undertake limited caseload. Clients can find themselves being pushed from one organisation to the other until they find one with the capacity and skills to assist them, they run out of time or they give up. Services are limited in the geographical area they can cover and their ability to publicise themselves. Many of those in need are unable to access help or are simply not aware that help is available. The most fundamental problem in relying on pro bono and voluntary services is simply that the demand is far greater than the supply.

I donate my own time to working in the PSU and the Free Representation Unit, a charity that provides representation at social security and employment tribunals for those who would otherwise have to represent themselves. I believe it is helpful to my clients, I find it personally rewarding and I would not hesitate to recommend either to any law student. However, it is not enough. For those most in need, resorting to law is a slow, painful and intimidating process if it is possible at all. Without an overhaul of Legal Aid and a significant increase in funding it will remain so. Universal access to justice will only come at a price, but it is surely one worth paying.

James Cunningham is a Graduate Diploma in Law Student at Nottingham Law School (2017-18)

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