The increasing importance of the role played litigants in person within the English and Welsh courts has been recognised by the creation of an online litigant in person network. The aim is to provide an online platform for the range of people, organisations and institutions involved in seeking to address the issues raised by what has, over recent years, become a much more visible phenomenon. Legal aid cuts makes this a much harder job than it would otherwise have been – though it brings England and Wales into a similar position to countries overseas.
The thinking behind the website, as quoted in an explanatory leaflet, is that :
Access to free legal advice and representation is getting more and more difficult, having a disproportionately high impact on vulnerable people who may lose their home, income or contact with their family as a result of not being able to access the right support. Recent research has shown that the problem is getting worse, with 80% of private family cases having at least one party unrepresented. At the same time, innovation and progress in access to justice is happening everywhere. Until now, there has been no central, online platform where a wide range of people can share information. There is consequently a risk that developments and resources are being missed, leading to duplication or gaps.
The manifest need for courts to grapple seriously with self represented litigants has come rather later in England and Wales than in other comparable jurisdictions because legal aid provided so much representation in family and other civil matters until the cuts introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012. This removed scope from any type of case unprotected by the Human Rights Act and, in particular, family cases – with tightly drawn exceptions where there was an element of domestic violence. Definitive data on the increase is impossible to obtain. The best source of authoritative information seems to be a briefing paper from the House of Commons Library issued in January last year. This recognised that accurate figures were particularly difficult because of deficiencies in the Ministry of Justice data already criticised by the National Audit Office. But the Library suggested that there had been:
•a 22% increase in cases involving contact with children (Children’s Act private law matters) in which neither party was legally represented;
•a 30% increase across all family court cases (including those that remain eligible for civil legal aid) in which neither party had legal representation;
•80% of all family court cases starting in the January–March quarter of 2013-14 had at least one party who did not have legal representation
Source: NAO, Implementing Reforms to Civil Legal Aid, 20 November 2014, HC 784 2014-15: page 15
Ministry of Justice’s own research into the nature of around 150 litigants in person is damning :
• The major reason for appearing in person was inability to afford a lawyer; appearing in person was wholly or partially a matter of choice for only around one quarter of LIPs …
• Only a small minority of LIPs were able to represent themselves competently in all aspects of their family law proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process.
• The great majority of LIPs were procedurally (and, where relevant, legally) challenged in some way, with some having no real capacity to advocate for their or their children’s interests.
• Around half of those observed had one or more vulnerabilities, making it more difficult for them to represent themselves and in some cases making it impossible.
The judiciary has, understandably, been increasingly concerned about the position of Litigants in Person and even produced a Handbook to help them in 2013. Responding to increased demand, the Law Society, Bar Council and CILEX produced guidelines for lawyers assisting litigants in person in 2015. The withdrawal of legal aided assistance has encouraged the growth of ‘McKenzie friends’ with limited rights of assistance. Particularly as remunerated services have been established, these have attracted a degree of concerned attention including a study by the Legal Services Consumer Panel in 2014 and earlier guidance from the judiciary.
The Lipnetwork has been inspired by the well-established Self-Represented Litigation Network in the United States. Like the Lipnetwork, this is primarily for those engaged in assisting Litigants in Person rather then individuals themselves. The Canadian (though seemingly focused mainly on Ontario) equivalent, the National Self-Represented Litigants Project (NSRLP) seeks to serve both constituencies. The Lipnetwork firmly despatches individual litigants in person off to AdviceNow which has received Ministry support for web-based information.
The network is co-ordinated by the Litigant in Person Support Strategy and supported by the Legal Education Foundation, funders of this website. Ella Playfair, the network’s development manager, said: ‘We really hope [the website] will provide a space for individuals and groups from different sectors to expand on and connect outside of their regular contacts. We hope that through this pilot we will begin to open up avenues of conversation, collaboration and resource sharing between diverse groups, including academics, the public sector and the advice sector.’
One immediate benefit of the network is that it provides a more public outlet for reports from the Ministry of Justice on the court modernisation programme. These tend to be buried deep in the government’s website, so heavily corporately branded as government that they can be difficult to find. The fate of the network website will provide an indication of how possible it is to bring together diverse interests addressing, at least in part, a common cause. Until now, it has been possible in England and Wales to use legal aid and its committed practitioners as a rallying point – as the Legal Aid Practitioners Group and, more widely, the Legal Action Group have done. Cuts mean that co-ordination of activity is that much harder and is very much dependent on sources like the LEF. There is nothing new in this for the rest of the world but it is a shift for England and Wales. A further complication may yet arise in terms of the increasing involvement in the courts of commercial ‘McKenzie friend’ providers of limited assistance short of legal representation: they may raise questions of regulation and quality which were formerly dealt with by the Law Society, the legal aid administration and the concern for reputation of organisations involved in pro bono provision. On the other hand, the issues relating to self represented litigants are shared between jurisdictions, certainly in common law countries: the network site would provide a real service if it helped to engender international collaboration on research on, and resources for, litigants in person.