Litigation focus | A guiding hand: how to handle the rise in self-represented litigants

Last year I noted some of the steps practitioners may wish to consider when dealing with litigants in person or self-represented litigants (SRLs) as they are now known. It is thought to be a term the individuals themselves will more readily understand. Since then, the Law Society has published guidance for solicitors who will have professional dealings with SRLs and which sets out their view of good practice.

While concern is properly expressed at the increase in the numbers of SRLs, it needs to be acknowledged that all litigants are entitled to represent themselves. They are subject to the same rules of procedure and are entitled to the same courtesy and latitude of any court user, advocate or practitioner. This article is not intended to criticise them or to question their entitlement to appear before the courts. But it is important to acknowledge that their lack of experience, perhaps of knowledge and understanding of law and procedure, will present the courts with a number of issues which must be grasped if they and ?all other litigants are to enjoy the most efficient court service possible.

On the rise

So why the present concern? There have after all always been self-represented parties appearing in our courts. The concern is twofold; first the increasing pressure on the court system to deliver against very tight resource margins, and second, and perhaps more importantly, not only are there reported increases in numbers of SRL but the informed predications are that this will continue to rise significantly.

The first is a common public sector theme. In August 2010 it was reported that the Ministry of Justice was to lose £2bn of its £9bn budget in order to meet terms imposed as part of the 2010 spending review and of which the budget for legal aid would bear a significant part. It is that, allied to reductions from local authorities in grants paid to the advice sector, which is likely to have a significant effect.

At the time the changes to the provision of legal aid were being considered most commentators concluded that a rise in the number of SLRs, particularly in family disputes, was an inevitable consequence and that view has not changed.

As a result of these concerns, in November 2011 the Civil Justice Council released Access to justice for litigants in person (or self-represented litigants). A report and series of recommendations to the Lord Chancellor and to the Lord Chief Justice. Published under the leadership of Robin Knowles QC, it noted that the eight basic principles set out by Lord Wolf in his interim report Access to Justice remain a proper cornerstone when considering how the court system should approach the question of increasing numbers of SRLs.

They are:

(1) It should be just in the results it delivers.

(2) It should be fair and seen to be so by: ?? ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their ?legal rights; ?? providing every litigant with an adequate opportunity to state his own case and answer his opponent’s; ?? treating like cases alike.

(3) Procedures and costs should be proportionate to the nature of the issues involved.

(4) It should deal with cases with reasonable speed.

(5) It should be understandable to those who use it.

(6) It should be responsive to the needs of those who use it.

(7) It should provide as much certainty as the nature of particular cases allows.

(8) It should be effective: adequately resourced and organised so as to give effect to the previous principles.

Taking up that challenge, the Council made a number of recommendations, short, medium and longer term. In a series of annexes to the report they provided draft guidance notes on what court staff can and cannot do for a SLR, what legal professionals representing against a self-represented litigant should know, notes informing SLRs of what they are entitled to expect from legal professionals representing other parties in the case and a Draft Code of Conduct for McKenzie friends. At its meetings in both February and June 2012 the Judges Council considered this report.

At all levels it is anticipated that the increase in numbers of SRLs will be felt from the District Bench to the Court of Appeal

Another example of the difficulties to be faced relates to the instruction of experts.

This is likely to be especially acute in relation to family matters and I will return to this.

As a consequence, the judiciary have taken a number of steps. The first is the production of a number of procedural guides, including one on multi-track trials and one dealing with small claims to follow. Second the Judges Council has agreed to set up a working group to coordinate cross jurisdictional work on access to justice for SRLs. Tribunals have a history of SRLs appearing before them and the value of their experience cannot be underestimated as the court based judiciary grapple with these issues.

On 31 July 2012 Mr Justice Ryder published his report Judicial proposals for the modernisation of family justice. One of the key proposals was: “Self-representing litigants will need to be assisted to understand and comply with the procedures which are necessary to achieve fairness in financial remedy cases” and at paragraph 25 of the report noted that the Family Justice Council has been asked, among other things, to provide multi-disciplinary advice on SRLs.

The report makes it clear that the courts are likely to be dealing with SRLs who will not have had the benefit of legal advice and little concept of the process. So, in relation to private law matters, to assist them and the judiciary in meeting their entitlement to justice as much as the represented parties, the report envisages the publication of a Public Law Pathway. The pathway will set out “what the court can and cannot do and how it does it”, making it clear that the court has an overriding safeguarding role, describing that process, and that case management decisions may be taken where appropriate which will limit the extent of cross examination. It will describe a situation where, with the assistance of the parties, the court will identify the issues and then hear the cases of both parties in a much more inquisitorial way by asking the question himself or herself.

Expert witnesses

As I have previously mentioned, one great difficulty for the courts will be the instruction of expert witness’. Ryder J reports that the Family Justice Council is to facilitate a process which will provide advice and materials, which should be available electronically, to assist both the court and the SRL, both for private law and financial remedy proceedings. It is also understood that there may be a change to the Family Procedure Rules 2010 to deal with this same issue whereby, although ?the drafting of the letter of instruction ?will be for the parties, it will be a matter ?for the judge to decide not only the issues for the expert but also the specific questions to be asked.

Dealing with financial remedy claims may well present the court with its biggest challenge in dealing with SRLs particularly in relation to the need to give full and frank disclosure and the ability to conduct a balanced and effective Financial Dispute Resolution hearing as well as the ability to draft an effective order if agreement is reached. Accordingly the money and property working group of the Family Justice Council “will be invited to develop proposals for reform to the rules and practice directions relating to financial remedy cases”.

Of course what these proposals and processes envisage and are designed to meet are the needs of the ordinary litigant; one who feels that an injustice may be served by either failing to take steps to enforce an entitlement or steps to defend proceedings brought against them. And this may be an individual or a small business owner strictly pursuing commercial interests but whose personal position is closely tied up with the business. The type of individual for whom the court system is there to serve but who for economic reasons or choice decide to self-represent. The vexatious litigant may well be better informed than before but changes in rules, procedure and practice are not designed to make the cause of the those SRLs any easier.

Whether in relation to civil or more particularly family proceedings, increasingly the court will have to recognise the difficulties presented by, and for, SLRs and address them, so as to ensure the integrity of the court process. Whether that be by the provision of accessible procedural guides or by a change in attitude from all the professionals involved, any discomfort will be both acknowledged and met. It has to be.