Willard Foxton

How legal aid reforms are clogging up the courts

How legal aid reforms are clogging up the courts
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Litigants in person – individuals representing themselves, rather than relying on a lawyer – have always been a feature in courts, and are the source of the aphorism ‘a lawyer who represents himself has a fool for a client’. While the profusion of courts means there are no easily available statistics as to their numbers, as late as 2011, about one fifth of cases featured litigants in person. Since the government slashed legal aid in April of last year, the number of them has exploded. While the funding for these cases has vanished, the right to go to court has not.

The most recent set of figures is for autumn 2013 - before many cases under the new regime were launched. Lawyers and judges tell me anecdotally numbers have spiked – about half of cases with one party or other unrepresented is a rough number that many judges and barristers agree on, and Judges have gone on the record to say unrepresented people now are the majority of cases. Litigants in person are getting higher and higher up the justice system too - only last week, the Supreme court issued guidelines for dealing with people without legal representation arguing before it, in preparation for a string of upcoming cases.

Mister Justice Holman did a good job of summing up the difficulties judges face on trying to rule in these disputes:

‘I have no  legal representation...no expert evidence of any kind. I do not even have such basic materials as an orderly bundle of the relevant documents; a chronology; case summaries, and still less, any kind of skeleton argument. Instead, I have had to rummage through the admittedly slim court file..I shall do my best to reach a fair and just outcome, but I am the first to acknowledge that I am doing little more than “rough justice”.’

One immigration barrister I spoke to, Greg O'Ceallaigh of Garden Court, put it bluntly saying ‘the man in the street has as much chance of dealing with these issues as building their own rocket to the moon’. Since the abolition of legal aid funding,  he's seen British citizens detained for months by the borders authority, and some almost deported, just because they didn't have a clue how to prove they were British in a courtroom. ‘People do so much damage by representing themselves - it's so frustrating when you come to a case quite far down the line that could have been won earlier. People have no idea how to present evidence and no idea of what courts are looking for in legal arguments’.

The scope of the areas now removed from legal aid are much wider than most people realise - for example, most family law where there's no domestic violence alleged is now completely outside the scope of legal aid. As legal aid is only available to the alleged victim of domestic violence, this creates a huge problem in those cases - abusers are able to use the courtroom setting to directly attack their victims. It rarely escalates to the stage where an abuser will physically assault the person he is questioning – as occurred in this recent case where a husband punched his wife in the courtroom – but judges are increasingly having to step in to prevent intimidation by questioning.

The judge stepping in, and attempting to see justice done, and accommodating the special needs of litigants in person, is part of why these cases are such a bad idea – they take much longer in court, and court time, in particular, is not cheap. Spending a morning in the Royal Courts of Justice this week, I observed a scene where two litigant in person cases were first on a docket of 16 cases for the day. On seeing they were litigant in person cases, most barristers turned around and went back to chambers. One advocate, who asked not to be named, said to me ‘the court normally would assign half an hour to a matter like that - but that one will take all day’. I waited around, and he was proven right. Meeting him for a drink afterwards, he made the point that if cases were taking 16 times longer than they should be, would was that doing to the Ministry of Justice's apparent cost savings? As Lord Justice Ward said, ‘It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts’.