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Litigants in Person – an inherent problem with the justice system

Matthew Richardson, barrister at Coram chambers considers the fundamental problem with re-shaping our justice system around a huge increase in litigants in person, caused by the removal of legal aid provision from most cases

Matthew Richardson is a family barrister at Coram Chambers

There is an inherent problem at the heart of the justice system of England and Wales. It comes as a direct result of cuts to legal aid provision, in the form of a huge increase in the number of litigants in person. This article sets out to consider the fundamental flaw in a system that is increasingly built on the expectation that just and fair outcomes can still be achieved to an acceptable level when a significant portion of litigants do not have the benefit of a lawyer.

For the record, what this article is not is an evidence-based analysis of the measurable impact that the post-LASPO rise in litigants in person (LiPs) has had, for example on rates of conviction in the criminal courts or rates of child arrangements orders in the family courts. For one thing, the glaring absence of proper statistics from the government makes the task of writing such an article virtually impossible. For another, as will be shown below, there is a problem of such a vital nature that showing it does not rely upon statistics and gathered evidence.

The problem is building a system of justice that relies upon people representing themselves overlooks the inherent fact that it punishes people who are less able to litigate, rather than whose case is less deserving. This is not how a fair system should operate. A case should be decided on the basis of the relative merits of each side's evidence and argument.

(And make no mistake: our system's rules include specific provisions that LiPs cannot use the absence of a lawyer as an argument that the case they present should be analysed differently. This must be right: simplifying the system to remove inefficiency and irrelevance, thus making it easier for litigants in person to engage with, is one thing but doing so past a certain point is to reduce the system's integrity. This is why the system cannot permit the fact of not having a lawyer to be part of the reasoning behind a final outcome – the laws are the laws and the rules are the rules, and to have a system that demands less of some parties than of others is to have a system that is not fair.)

Clarity of thought and subtlety of understanding are not by any means universal and the reason people need lawyers is that often the justice and fairness in a situation are difficult to identify and difficult to explain. A system of laws to govern a nation of millions will always be complex and therefore so will navigating it in difficult disputes. Such navigation requires expertise.

A lot of people have not been taught how to think well. Errors and bias in thinking are common. Human brains are flawed machines, highly prone to error. A cruel irony is that among the flaws is an inability to realise the mistakes we tend to make. Clear, logical, evidence-based thinking is a skill that requires training and practice.

Therein lies the problem with creating a situation where vast swathes of people are forced to represent themselves. Whilst some exceptional LiPs will have the skills needed to present their case to a high-enough standard, across a large enough set of people (for example the 64,000 people, or 64% of the total number, who brought private family cases acting as LiPs in 2016-17) an unacceptably large majority of those people will simply lack the ability to identify their best evidence or their best arguments let alone present them effectively.

There is a vital difference between having a good case and finding and presenting that case. The fairness in a dispute can only be identified by the court if the court is able to clearly perceive the different sides. If a party is inherently less able to find the crucial evidence and connect it to the relevant law, then that party is inherently less able to present their case in the best way.

The justice system does not, and cannot, care about things that aren't presented to the court. In court it's not about what's true in real life, it's about what's true on the evidence. As Lord Neuberger, the former President of the Supreme Court, said in 2017:

"I have no doubt but that the legal team can make a real, often a crucial, difference to the outcome of a case, in identifying the issues, the points to be taken, the evidence to be called and the authorities to be read. In the 1983 House of Lords Air Canada case in 1983, Lord Wilberforce said this: 'There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and the law, justice will have been fairly done.'"

A lawyer's job is to find and present the best case they can. And there is a reason why it's a job in the first place – this is a difficult matter of specialism and expertise, and one that requires resources (such as those offered by law firms and barristers' chambers). LiPs will never get close to being able to compete. Therefore, ultimately, in most situations, a LiP will be disadvantaged in all but the most straightforward cases compared with someone represented by a trained and competent lawyer. With a system populated by large numbers of LiPs, it is inevitable that strong cases and good arguments will go unheard.

If we want our system to produce outcomes based on who has the clearest evidence and the strongest arguments then we need to provide everyone with the ability to present them. Our system no longer does so. Ours is now a system where those with more money to pay for lawyers are more likely than ever before to win cases. If lawyers' primary concerns are winning their clients' cases then perhaps this is of minor concern because the more often a lawyer comes up against a LiP the more often they are likely to secure the outcome their client wants. However, if we care most about our system being one that produces fair and just results then this is a major problem.

The government has decimated legal aid provision and now appears intent on simply adjusting the administration of the system to make it easier for LiPs to use. This is simply not good enough. We don't think about simplifying the medical system so people can diagnose and treat themselves, why are we treating the justice system differently?

If anyone could do the job of a lawyer, there would be no need for the expansive and exacting set of rules and regulations governing how solicitors and barristers deliver their services. Ours is a regulated profession for a reason – it is both important and complicated – and if cases weren't difficult to argue then we wouldn't need judges to decide them.

Ultimately, one is brought back to the question of why we have legal aid at all. The answer is to provide access to justice. We provide lawyers to those who cannot or should not be expected to pay for them because it is more important that all people have access to fair outcomes than it is that some people will have to pay tax to enable them.

Giving access to the litigation process and to a courtroom is not the same thing as giving access to justice if the playing field is inherently uneven, which it is for most litigants in person.

Matthew Richardson
16 November 2018

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Sources and references

Family court user statistics:
Paragraph 167

Neuberger quote
Paragraphs 17-18

Further reading on the impact of rises in litigants in person has been well collated by Gordon Exall on his blog: