As any system must, the judicial system has been required to evolve with the times to allow it to continue to deliver on its core aims. Namely to deliver justice “on the merits”. The latest instalment of reforms have continued to push forward changes to ensure justice was not just achieved “on the merits” but also in a cost effective way. These reforms came into force in April 2013.
About 18 months on we are now beginning to understand their impact. A notable consequence is the rise of DIY litigation (or “litigants in person”). Litigants in person have impacted not just the time and resources of the court system but also on the ability to achieve justice. Many have argued that reforms have not led to a reduction of costs but only to a shifting of costs and essentially is costing us more.
The reforms have not just changed how litigation is conducted but also the ability to access professional legal services for the average person.
The main (and much publicised) change in April 2013 was the cuts to legal aid. But other reforms also included:
- change of small claims limit from £5,000 to £10,000 – this effectively removed the right to recover your legal costs (and accordingly afford to pay for legal services) if the value of your money claim is below £10,000
- changes to what is recoverable under conditional fee agreements (“no win no fee agreement”) – with the effect that there is less scope for CFAs to be offered to clients with higher risk claims
- tighter sanctions for breach of court procedural rules – meaning that there is greater chance of your case being struck out for procedural error
Bringing or defending a claim without legal representation requires the litigant in person to navigate not just the evidential and legal burden of their case alone, but also the procedural requirements of the courts in bringing a successful case.
The Personal Support Unit is a charity that provides general support to litigants in person in court. They have reported that the number of people representing themselves was up 40% in 2013 and that one in four litigants in the county courts has no legal representation. Their report states that most litigants in person are “at an automatic disadvantage without legal representation” and “most are confused and alienated by the court system.” At this stressful time in their lives many do not find it easy to cope with legal arguments and verbal representations, let alone court procedure and documents.
District Judges are the main ones who absorb the impact of a surge in litigants in person, and they have commented that they are seeing considerable time delay as a result. The clogging up of the court system has a knock-on effect in getting individual cases issued and heard. This results in time and money being lost by others seeking a remedy from the court. Legal professionals facing a litigant in person as an “opponent” have commented that they spend far more time (and so money) on a case because the litigant in person understandably is unfamiliar with court procedure and is often unable to present their case to their own advantage. This requires the opposing lawyer to take time to guide them through the process so that the case can proceed.
The added time and hands on role required by judges has been highlighted in various reported cases. Lord Justice Ryder in the child custody case of C (A Child) & Anor v KH  EWCA Civ 1412 commented that the requirements of justice meant the judiciary should “put in place procedures and practices which can accommodate litigants in person who do not know the rules and practice directions of the court.” He commented that “the obligation upon the court to identify and implement due process should not be underestimated. That will take time and that means a greater share of the court’s limited resources.”
Mr Justice Holman (Tufail v Riaz  EWHC 1829 (Fam)) found himself in sitting on a case where the parties were before him has no expert evidence or “such basic materials as an orderly bundle of the relevant documents; a chronology; case summaries, and still less, any kind of skeleton argument.” He stated he was left with little choice but to “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".”
The issue of lack of expert evidence and the inability to do proper justice without it was again broached in a child custody case Q v Q  EWFC 7. The President of the Family Division commented that there may be a requirement of the Court to fund expert fees which would not otherwise be able to be obtained.
Within our work we are contacted frequently by those who have tried to bring a case alone. It is sad to see that a case that might have been successful if advice was sought at an earlier stage, and the case properly pleaded, has ended up failing. The result is that not only has the litigant in person not only being unable to enforce a right they may have been entitled to, but they may also be ordered to pay their opponents costs which can be a grossly high sum. I hear from many litigants in person who come away from the system feeling like that the odds are stacked against them or that the judge hasn’t listen to them. This will mostly be a result of evidence and legal arguments not being presented correctly. The judge can step in in an attempt to see justice done and accommodate the special needs of litigants in person. But our current judicial system, in its adversarial form, is not built for this and it also takes court time and of course costs. The very evil that the reforms sought to eradicate.
The Law Society have confirmed that the reforms in April 2013 have proved inconsistent, time-consuming and costly. Their position is that they reduce access to justice, increase costs to business and result in a windfall for insurers. The government has commissioned the Civil Justice Council working party to commence a consultation on the first year of the reforms. They will make recommendations to the justice secretary on access to justice for litigants in person by 31 October.