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MoJ report recommends legal advice for litigants in person

Increase in legal costs for represented party when one or more litigants in person involved in family law case

1 December 2014

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Initial legal advice should be made available for self-represented litigants, according to recommendations made by the Ministry of Justice (MoJ).

The 'Litigants in Person in Private Family Law Cases' report has highlighted the difficulties litigants in person have in trying to make sense of the family courts. The report also draws attention to ongoing problems members of the public face when trying to navigate the court system without legal representation.

National family law organisation, Resolution, welcomed the long-delayed publication of the report.

Jo Edwards, chair of Resolution, said the recommendation for initial legal advice for litigants in person was something Resolution had been arguing for quite some time. Edwards added that the impact of the legal aid cuts had been predicted by Resolution, and that their concerns had now been confirmed.

"Our members see first-hand the problems faced by litigants in person, who enter the courts without a full understanding of their legal position, court procedures or how to present evidence, leading to emotional and acrimonious proceedings and sometimes unfair outcomes for them and for their families," she said.

The number of self-represented litigants has increased since the introduction of LASPO. Cafcass estimates that up to 19,000 more parents appeared unrepresented in civil courts in cases involving children in the past year after cuts to family legal aid commenced.

Edwards also voiced her concerns that the lack of legal signposting and advice meant that far fewer people were entering mediation after the loss of family solicitors.

"Publicly-funded mediation numbers have dropped 45 per cent over two years, despite the government's stated objective of diverting more separating couples into mediation," she added.

Diverting court resources

The report was released in the same week as a MoJ statistical bulletin, which claims the duration of private law hearings in which neither party has legal representation has decreased in comparison to cases in which both parties have lawyers.

These findings, based on average hearing times, directly contradict the experience of Resolution's members. A recent nationwide survey of the organisation's lawyers found almost 70 per cent had acted for a party in family proceedings where one or more of the other parties were a litigant in person.

Furthermore, 80 per cent of respondents to Resolution's survey said that the legal costs of the represented party increase when one or more litigants in person are involved in a case.

Edwards commented: "[The] initiatives being pursued by the MoJ and HMCTS to simplify the court process for litigants in person is no substitute for proper, timely legal advice, which is far more likely to result in early settlement of cases."

She added: "The issue of people representing themselves in the family courts is serious, with huge implications for the family justice system and for families themselves. We hope the government takes swift action on the report's findings and acts to give litigants in person the support they need, whilst heeding calls, most recently in the House of Lords, to undertake a thorough impact assessment of the legal aid cuts."

John van der Luit-Drummond is legal reporter for Solicitors Journal

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Marriage & Civil partnership Courts & Judiciary