Unrepresented

There have always been litigants who have, for a variety of reasons, represented themselves in court proceedings.

But the number of litigants in person – the judicially accepted phrase for parties who are not represented by a lawyer in court proceedings – has risen hugely since the changes to the scope of civil and family legal aid are introduced by the coalition government in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

This has put added pressures on judges and the court system; and increased the workload of lawyers acting for clients in cases where the other side is unrepresented.

In 2014, the government’s spending watchdog, the National Audit Office, estimated that the increase in litigants in person (LiPs) in the family courts cost the Ministry of Justice (MoJ) £3.4m. But putting numbers on the overall increase is tricky, as there appears to be no centrally kept record.

Last year, Lord Chief Justice Lord Burnett of Maldon told the Commons’ justice committee by letter that in the financial year 2012-2013, immediately preceding the LASPO’s introduction, 58 per cent of parties in private law family cases were recorded as having legal representation, but by 2017-2018 that had fallen to 36 per cent.

He told the committee that data for legal representation in defended civil claims only went back to the start of 2013, so a pre- and post-LASPO comparison was not possible. But he said since the introduction of LASPO, levels of legal representation have been largely stable, with 69 per cent of parties having legal representation in defended claims in 2013-2014, compared to 71 per cent in 2017-2018.

Becoming the norm

The most recent statistics since then from the MoJ suggest that self-representation has become the norm in family proceedings. In 2019, 81 per cent of private family law hearings involved at least one LiP and, in 38 per cent of cases, neither the applicant nor respondent had legal representation.

In its 2010 report on a virtual court pilot, the MoJ estimated that 32 per cent of defendants in magistrates’ courts were unrepresented; and in 2017, published figures suggested that 7 per cent of crown court defendants were unrepresented.

In other courts, the judiciary’s Equal Treatment Bench Book states that the vast majority of defended civil actions in the county court, which are dealt with under the small claims procedure, involved LiPs. It also notes that the “great majority” of people in tribunals are also unrepresented, and says LiPs are appearing with increasing frequency in the Court of Appeal in criminal, civil and family cases.

The scale of the problem is shown most starkly in the sevenfold increase in demand for help from Support Through Court since 2013. The charity, previously called the Personal Support Unit, supports people who have to represent themselves at court and now sees almost 75,500 people a year.

Yet the judiciary’s bench book tells judges that LiPs “should not be seen as an unwelcome problem for the court or tribunal”. Rather, it highlights the stress and worry they may feel “operating in an alien environment in what is for them effectively a foreign language”. It goes on: “They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.” It says that because the procedure is so familiar to lawyers and judges, “they often do not realise the extent of a LiP’s misunderstandings”.

The book tells judges: “LiPs commonly feel at a profound disadvantage” and suggests they should “maintain a balance between assisting and understanding what the litigant in person requires, while protecting their represented opponent against the problems that can be caused by the litigant in person’s lack of legal and procedural knowledge”.

As well as their lack of legal and procedural knowledge, many LiPs have additional difficulties, for example, they do not speak English as their first language, they have a learning disability or they come from a socially excluded background. Lawyers have to deal with the extra burden all this brings and try to strike the right balance.

Cris McCurley, family law partner at Ben Hoare Bell and a member of the Law Society’s access to justice committee, says lawyers for represented parties are expected to help LiPs, for example, by discussing the case with them and talking to them about how to prepare statements, as well as drafting orders, preparing bundles and doing any chasing up work. “If the represented party is privately paying, this can cause some issues as it leads to additional costs for the client,” she says.

Assisting LiPs

The MoJ is seeking to amend part 39 of the Civil Procedure Rules (CPR) which will further increase lawyers’ workload. Contained in a wider open justice consultation last year, it wants to enable courts to give directions to encouraging represented parties to provide an informal record of proceedings before the approved hearing transcript has been published. The aim is to help LiPs seek legal advice on the merits of any potential appeal without delay and at less cost.

The situation for lawyers can be particularly difficult in family law cases, where there are added emotional elements caused by relationship breakdown, and connected issues relating to children and or finances.

Where lawyers have to assist LiPs, McCurley says it can lead to insecurity on the part of the represented client, especially where there have been allegations of domestic violence or coercive and controlling behaviour. Where clients need to be able to trust their lawyer, she warns: “That trust can be damaged when they see us apparently helping their abuser”. Interacting with LiPs in these circumstances can, she says “look to a vulnerable woman that her lawyer is cosying up to her abuser”. Finding the right balance, she adds, can be hard and will often mean having to spend additional time with the client reassuring them.

Mena Ruparel, a consultant at the law firm Chapman Pieri and member of the Law Society’s family law committee, says LiPs can bombard solicitors with questions and irrelevant material, but stresses that lawyers must treat them in a professional manner at all times. The solicitors’ code of conduct, she explains, requires that lawyers do not mislead or attempt to mislead clients or others; and they must not abuse their position by taking unfair advantage of them. That includes LiPs.

But she says: “There are some appalling examples of solicitors becoming frustrated with litigants in person and behaving in an unethical manner”, leading to regulatory sanctions. While some lawyers deal transparently, politely and respectfully with LiPs, Beccy Scott, director of legal services at RCJ Advice, says others can take a “technical point-scoring and aggressive approach” that is not in the spirit of the CPR.

While the rules and practice directions are not specifically directed at LiPs, they do try to create an “even playing field and a preventative, open approach,” she adds. LiPs can be at fault too and, says Ruparel, can deliberately seek to drive up the legal costs of the represented party by making excessive communications.

While there are no specific practice directions in family law relating to LiPs, Ruparel points to a joint guidance document published by the Law Society, CILEx and the Bar Council in 2015 which provides guidance on dealing with them. But it can be a difficult balancing act to dealing appropriately with the client and a LiP. “For example, a client may say to their solicitor ‘do not interact with my spouse at all’”, adds Ruparel.

To follow their instruction, she insists, would be a breach of the code of conduct and unethical. She explains: “If they are self-representing there has to be communication and it is difficult to control how the litigant in person decides to communicate with the solicitor.”

Justice denied

Noting the obvious inequality of arms where a LiP is opposing a party represented by a lawyer, Scott says “to a very significant extent” the unrepresented party gets a raw deal. “The procedural rules are too complex to be readily understood by the lay person,” she says, a difficulty compounded by the emotional stress of it being the LiP’s own case. She adds that the high volume of work involved in litigating as a layperson has to be balanced with their other commitments.

Penelope Gibbs, director of campaigning reform group Transform Justice, studied the experience of unrepresented defendants in magistrates’ courts and concludes: “I am now convinced that no-one should have to represent themselves in today’s criminal courts”.

Her 2016 report, Justice Denied? The experience of unrepresented defendants in the criminal courts, found that defendants appearing without lawyers struggled to get justice – they did not understand how to plead, how to conduct their own trial and, if pleading or found guilty, how to mitigate their sentence.

The report also found that most prosecutors hated prosecuting unrepresented defendants because they believe justice is denied them, however hard they try to level the playing field. One told researchers: “I have prosecuted trials against unrepresented defendants. It is a complete sham and a pale imitation of justice”.

Gibbs concludes: “I’ve got nothing against self representation in principle. But in practice, our system is designed for opposing lawyers, and very complex. Without a very deep knowledge of the law and the legal process, anyone who presents their own case is at a disadvantage.” To make things tougher, in civil cases the Supreme Court confirmed that LiPs will not be given special treatment if they fail to comply with procedural rules or court orders.

In Barton v Wright Hassall [2018] UKSC 12, the judges said that while allowances could be made in case management decisions and in conducting hearings, lowering the standard of compliance with rules or orders would be unfair to represented parties and contrary to the overriding objective of the court, which requires it to enforce compliance.

Despite that ruling, McCurley insists that in most situations judges in court “will always bend over backwards to help [LiPs] to the extent that the represented party often feels that the judge is biased to the LiP. “No matter how much the advocate tries to assure the [represented party], it is very hard to get across to the client that the judge is in reality not showing bias, but trying his/her best to ensure that everyone gets a fair hearing.”

The Covid-19 effect

The lockdown has caused the temporary closure of more than half the courts in England and Wales and moved most hearings that have gone ahead online, creating more potential issues for unrepresented parties. Feedback received by the Law Society, says Ruparel, shows LiPs are finding it harder than usual to understand the court process and participate effectively in remote hearings.

They lose the help they would otherwise get from services available at court to help them, she says, as well as losing the opportunity to speak to the lawyer representing the client in the other side. She adds that where a judge at a physical hearing may see that the LiP is struggling to understand something these nuances may be lost in telephone or video hearings.

Noting that the lack of being equipped with technology skills may exclude some from the possibility of remote hearings entirely, Scott reports mixed responses. “Some LiPs prefer them as they are less anxious, and do not have to travel or enter a court in person. While others report finding their distress is increased when they are detached from the decision-making and cannot express themselves in person, or that the tech stutters or lets them down.”

Research on remote criminal justice in 2017 by Transform Justice found that just fewer than three quarters of survey respondents felt that video hearings negatively affected the participation of unrepresented defendants. As we look to the future where some online hearings may survive the coronavirus crisis, we should consider this a salutary warning.  

Catherine Baksi is a barrister and freelance journalist