Sinking not swimming – personal litigants and access to justice
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Louise Heath
Les Allamby summarises recent research into the failings of the Northern Ireland court system to deal adequately with the significant number of personal litigants, and provides some recommendations to promote their effective participation.
Thousands of personal litigants will be in the courts each year and these courts will need to adapt to ensure effective participation.
It isn’t every day you run a conference addressed by the lord chief justice before an audience of personal litigants, including one man jailed by that lord chief justice after trying to make a citizen’s arrest of a judge during a hearing in the Court of Appeal. The trepidation in advance proved unfounded, with personal litigant speakers from the conference platform and the floor making active and valuable contributions about their experiences. In effect, the lesson learned was that giving personal litigants a voice and an opportunity to participate will be appreciated and responded to positively.
The conference was the culmination of Nuffield Foundation-funded research, undertaken by the Ulster University School of Law and the Northern Ireland Human Rights Commission (NIHRC), into the barriers to legal participation facing litigants in person in the family courts and bankruptcy proceedings: Litigants in person in Northern Ireland: barriers to legal participation (Gráinne McKeever, Lucy Royal-Dawson, Eleanor Kirk and John McCord, May 2018).
The context in Northern Ireland is that we have not implemented the LASPO cuts within legal aid. Nonetheless, tighter means testing over the years and some limitations on scope have been part of long-standing attempts to control legal aid expenditure. This has led to many individuals falling outside of entitlement. In Northern Ireland, excluding small claims court proceedings, around 5,000 people a year defend or take their own cases. This is around five-and-a-half per cent of all litigants in the civil courts.
The research
The research aimed to evaluate the impact of personal litigants on the court system and to understand how they participate in practice in their own cases. It focused on family court issues, particularly divorce, ancillary relief, family homes and domestic violence, family proceedings, plus bankruptcy and civil bill matters. The study covered 179 personal litigants in the courts, who were observed between September 2016 and September 2017. Each person was interviewed and completed a questionnaire covering their level of participation in the proceedings and general health.
A further 59 interviews were conducted with judges, solicitors, barristers and court staff. In addition, a cohort of personal litigants in family and matrimonial proceedings were offered procedural advice at a legal clinic run by the NIHRC. Further data was obtained through interviews and a further questionnaire from 25 people who took up the offer of the clinic. Finally, an analysis of the human right to legal representation under article 6 of the European Convention on Human Rights was undertaken (the right to a fair trial).
Findings
There were a variety of reasons why individuals ended up representing themselves. The most common was not qualifying for legal aid and not being able to afford a lawyer. In some instances, personal litigants had legal assistance but weighed up the costs and benefits of representation and decided that other financial demands were more important. In other cases, individuals were dissatisfied with being kept at arm’s length about their own cases and decided to represent themselves. The lawyers interviewed interpreted dissatisfaction as a product of a client not getting the advice or outcome they wanted. In practice, personal litigants have surfed in and out of legal representation rather than always representing themselves. Moreover, a number would have liked some legal assistance at certain stages of their proceedings.
The research found that court procedures and arrangements are predicated on all parties being legally represented – the presence of personal litigants challenges this norm with the court system struggling to adapt. Applying the concept of effective participation as a human rights standard, it was clear that personal litigants faced practical, intellectual and emotional barriers to participating effectively in court proceedings.
There was a lack of information and advice on what was expected, with limited access to guidance on the practical and procedural issues involved in taking or defending a case. Court staff regularly sought to assist individuals but felt compromised by their role and other pressures on their time. Personal litigants often assumed that an approach from the other side’s legal representative to agree facts or negotiate settlement was inappropriate and such overtures were often rejected. In effect, many personal litigants were left to sink or swim, often sinking.
A communication gap emerged where legal representatives regularly saw personal litigants as a source of irritation, based on insufficient accommodation of their lack of expertise prolonging proceedings and, on some occasions, due to their unreasonable behaviour. Personal litigants, on the other hand, frequently felt frustrated by a system, including lawyers, that was not meeting their needs while they were pursuing an issue of great personal importance. In practice, the observations provided little evidence of vexatious individuals; instead, there was a lack of fit within the system, which, in turn, created significant stress.
Personal litigants generally took steps to prepare their cases, yet often struggled and sought help from a McKenzie friend. This assistance was appreciated although the ability and role of McKenzie friends varied with no means of assessing their value or quality and no form of external regulation. There was also no consistency in the procedure to allow McKenzie friends access to the court.
The procedural advice clinic was perceived as being positive, leaving personal litigants feeling better equipped and appreciative of being taken seriously, though some users reported this service was ‘too little’ or ‘too late’. One finding was that many personal litigants would have welcomed unbundled legal services but this approach has not been readily adopted in Northern Ireland.
Conclusions
The findings show the difficulties and disadvantages faced by personal litigants. Individuals who self-represent are not accepted as legitimate court users, with little access to support or information on court procedures and the law affecting their cases. One response might be to simply suggest that personal litigants have ‘made their own bed and must lie in it’ or to extend legal aid to cover everyone appearing before the courts. This overlooks the fact that access to justice is about ensuring effective participation. Effective participation entails the ability to influence proceedings, an understanding of what is expected, and the opportunity to be heard and emotionally supported. For many participants in the research, the sense of a fair process was as important as the substantive outcome.
There remain human rights grounds where a person must be granted legal representation. Unfortunately, case law demonstrates that this is not an absolute right, with a number of factors requiring consideration, including the complexity of the case, the magnitude of what is at stake and the ability of the person to manage their own case. The reality is that thousands of personal litigants will be in the courts each year and these courts will need to adapt to ensure effective participation in practice.
The recommendations from the research concern all the key players, from personal litigants to lawyers and judges and will need to be embraced holistically if the current unsatisfactory situation is to improve markedly. They cover cultural change, administrative reforms, better access to legal services, improved information and advice, in-court and judicial support, legal training and policy development. There are 34 recommendations in total, with some of the key ones set out below.
In England and Wales, cuts to legal aid’s scope have been the catalyst for a number of initiatives to assist individuals who self-represent. This imperative did not drive reform in Northern Ireland, yet the problem of the courts being organised on the assumption that both parties are represented remains a significant one.
Where to next?
Immediate outcomes from the conference were that a personal litigant who is a web designer is now assisting the Northern Ireland Courts and Tribunals Service (NICTS) to make its web portal more user-friendly. Further, a litigant-in-person reference group is being set up with representatives from the Department of Justice, the NICTS, the NIHRC, Ulster University School of Law, and solicitors and barristers in private practice with equal numbers of personal litigants. The reference group’s purpose is to address information and support needs and relationship issues highlighted in the research. In time, the reference group may feed in to the newly-created civil justice oversight architecture: a shadow Family Justice Board and shadow Civil Justice Council have just been set up following the recent family and civil justice reviews conducted by Lord Justice Gillen.1Review of Civil and Family Justice in Northern Ireland, Review group’s report on civil justice and Review group’s report on family justice, September 2017.
These outcomes from the research are small beginnings. It is in everyone’s interests that the current unsatisfactory arrangements for personal litigants’ engagement with the courts are tackled. Access to justice requires effective participation of all those involved, whether represented or not. The research findings illustrate the extent of the challenge to ensure access to justice is real and not merely theoretical.
Recommendations
Cultural change
Explore and secure funding to develop initiatives to support personal litigants, including new models of advice provision
Ensure the Civil Justice Council and Family Justice Board are widely representative of users and consumers as in England and Wales
Establish a task force to create a Charter of Rights and Responsibilities for all litigants and court actors
Produce operational guidance on dealing with unacceptable behaviour and prolific applications from personal litigants
Administrative changes
Identify where personal litigants are in their court proceedings to provide more accurate data on the numbers and to facilitate contact
Make online provision for the submission of some court documents
Explore how online approaches can be developed to support personal litigants, drawing on international examples of good practice
Access to legal services
Identify how personal litigants can be better supported through expanding legal aid eligibility on an exceptional basis, the Official Solicitor scheme or judicial recommendations based on the considerations highlighted in the Equal treatment bench book
Examine the full potential of unbundled legal services, drawing on experience elsewhere
Information
Develop a basic orientation course of the court system for personal litigants
Introduce litigant-friendly information and web resources
Provide access to procedural guidance, key case law and Northern Ireland legislation in one place
Conduct an audit of language in court documents to make them more reader-friendly
Produce standard templates for court forms, bundles, affidavits and skeleton arguments that personal litigants can access
Advice
Create an advice and information hub that can provide face-to-face support, staffed by a qualified lawyer
In-court support
Develop a mechanism to assess how well McKenzie friends serve personal litigants, including developing codified rules and/or regulation for McKenzie friends and guidance on when in-court support can be provided and to what extent
Engaging the legal profession
Train solicitors and barristers on how to represent clients against personal litigants, the needs of personal litigants and the value of procedural justice from a personal litigant’s perspective within professional legal education, including continuing professional development
Provide training in lawyer self-care and professional support services to deal with abuse and trauma experienced by lawyers
Policy development
Develop a strategic plan for health-justice partnerships, co-locating legal support services with social and health services
Integrating changes
Ensure that future practice directions take into consideration what should happen when one or more parties is a personal litigant
Identify and share good practice within the tribunal service and elsewhere, and from other jurisdictions
 
1     Review of Civil and Family Justice in Northern Ireland, Review group’s report on civil justice and Review group’s report on family justice, September 2017. »

About the author(s)

Les Allamby - author
Les Allamby is the chief commissioner of the Northern Ireland Human Rights Commission.