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Holman J judgment starkly illustrates troubling effect of legal aid cuts

Lack of representation impacts on court time

Mr Justice Holman has described graphically the practical implications for the family courts of the continuing legal aid cuts.

In his judgment in Tufail v Riaz [2013] EWHC 1829 (Fam) he quoted from the recent public lecture to the Institute for Government by Lord Neuberger of Abbotsbury, the President of the Supreme Court:

"It is vital for the Ministry [of Justice] to appreciate that any changes which are made to reduce legal aid and cut the cost of litigation are likely to have a knock-on effect on the cost of the courts.  Less legal aid means more unrepresented litigants and worse lawyers, which will lead to longer hearings and more judge time …"

In the lecture Lord Neuberger had earlier said: 

"There is a fundamental public duty on the government, and also on the legal profession and the judiciary, to work constructively together with a view to best maintaining access to justice in the face of the harsh realities of government finances.  Lawyers and judges have a duty to help make the system work, as well as warning of the risks of cuts."

The present case concerned a petition for divorce presented by a wife. She herself resides in Pakistan and appears currently to be unable to visit this country.  She had previously been represented by solicitors, but could no longer afford the cost of doing so.  The judge had been told on the morning of the hearing that legal aid or public funding was not available to her. The husband claimed that there was a valid divorce certificate issued in Pakistan. He appeared in person.

Holman J said:

"In the present case, until recently, I would have expected to have had the assistance of experienced lawyers on each side and almost certainly expert evidence in relation to the proceedings in Pakistan which I will shortly describe.  As it is, I have no legal representation and 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, supplemented by various documents handed up to me by the respondent husband today and some material sent by the petitioner wife from Pakistan."

Holman J stayed the wife's divorce petition but made no declaration as to the validity of the divorce certificate.

He concluded:

"I now return briefly, as I began, to paragraph 27 of that speech which Lord Neuberger gave yesterday.  He said, as I have already quoted:  'Less legal aid means more unrepresented litigants …  which will lead to longer hearings and more judge time.'  I record that I began this case at 10.30 a.m. this morning and I am now concluding it around 3.30 p.m. It has, accordingly, effectively occupied the whole of the court day.   By sheer good fortune, the other case which had been listed for hearing by me today was vacated yesterday for reasons connected with its readiness.  If that case had not been vacated, I, and the litigants in that case, would have been faced with very considerable difficulties and a severe shortage of court time, and probably also additional expenditure to the parties in that case who, as likely as not, would have to have returned on another day. "

The judgment can be read here. Lord Neuberger's speech is here.

30/9/13