Help from the MoJ for litigants in person?

www.publications.parliament.uk/pa/cm2010...uc681-vi/uc68101.htm
Oral EVIDENCE
TAKEN BEFORE the
JUSTICE Committee
Access to Justice: Government's proposed reforms for legal aid
Wednesday 16 February 2011
Mr Jonathan Djanogly MP and Sarah Albon
Q403 Mr Llwyd: I am somewhat underwhelmed by the passion of your argument. Can I refer the Minister to what Sir Nicholas Wall, the President of the Family Division, told us? He expected a "massive increase" in litigants in person. He thought that cases will take longer and there will be more difficult experiences in court. He thought the Green Paper did not recognise this problem adequately. Furthermore, Sir Anthony May, President of the Queen’s Bench, said that some presented their cases well but large numbers did not and therefore increased the length and expense of court cases.

You said earlier on that it was purely anecdotal that there would be some difficulties in court. Are these two gentlemen labouring under some problems of believing anecdotes, or do you think they are relying on their own experience?

Mr Djanogly: We do think that there will be an increase in the number of litigants in person, but there will be a significant fall in the number of cases going to court. As to how far that goes, it depends on the extent of the behavioural change which we are promoting, not least the move towards mediation. It is hard to go firm on figures, I would say, from any point of view. However, we are sure that the rise in litigants in person will be much smaller than the decrease in cases. Does that make sense? But I would also say that it is important in this that we realise litigants in person have problems now and we have identified this as an issue.
We have a report being commissioned at the moment on litigants in person. We also appreciate that they need to be given better advice on how to demystify the court process. We are looking at that. One particular aspect of that we are looking at is to use IT, and particularly a walk-through IT system that you can look at that takes you through the court process. I have looked at a pilot and I can tell you that it is a very interesting development. I think it will do much to help litigants in person find their way round the system.
The other point I would make is that, if you take family law, which is what we are talking about, it is a much more inquisitorial process on the whole than other parts of the legal system. I have sat in on cases and very often, when people are not represented now or even when they are represented, the judge will take quite an inquisitorial approach to the case and guide people through. If you add all that together, I think it is an interesting question and one we will have to look carefully out for, but I don’t have concerns."

Hm. I think what happens remains to be seen. But I have just been reading this (very long) report from 2003 which looked at litigants in person, including in family cases:

www.familieslink.co.uk/download/july07/D...view%20of%20LIPs.pdf

The researchers found (among other things) that active cases (rather than those which just involved consenting divorce with no-one attending) which included litigants in person were less likely to be settled out of court, partly because some LIPs tended to want their 'day in court' and partly because some people didn't understand the process of negotiating with the other side and expected the judge to make a judgement on the case.

Their findings could be interpreted as a tendency for the judge to take an inquisitorial role when dealing with litigants in person, but my reading of the report is that this was only the case because some LIPs were so nervous that they couldn't really conduct their own case, and some didn't really understand what they had to do. So the judges saw themselves as making the best of a bad job, and did this out of goodwill and a sense of fairness. I'm not sure how they would now feel to have the Government relying on this when bringing legislation.

Best wishes,
Carrie

As you say, we shall see. Djanogly is well-meaning but a bit of a lightweight who is new to this issue and has limited understanding of it. His predecessor, Henry Bellingham, was far more impressive.

I doubt that there will be much of a reduction in cases coming to court - the only reason there may be is the Government's extension of the requirement to 'consider' mediation from legally aided cases to all cases. As some lawyers have suggested, it may well be that all cases which are suitable for mediation are already being mediated. If that is the case the loss of legal aid could be catastrophic.

Moving cases which are now dealt with in the first instance by solicitors to mediators is a risky experiment. The MOJ doesn't even know how many mediators there are - one statistic is that there are 4 within 15 miles of Bristol (the statutory radius) compared with 146 solicitors. It's going to be a bloodbath.

Representing yourself is not easy, and there are not the McKenzie Friends to go round. There are really very few good McKenzies, and some of the best (like Michael Pelling) have more-or-less retired. There are some cowboys out there who charge for their services and give very poor advice. Caveat emptor.

I don't think there's much evidence that judges give LIPs preferential treatment, and such is the work-load that it is unlikely they will have much patience with an inexperienced litigant.