Recent changes to the legal aid system have driven an increasing number of litigants into a situation where they have to represent themselves in court. The effect has been to increase the pressures both on the courts and on lawyers appearing for other parties in the same cases.
The problem was highlighted in a recent judgment of the Court of Appeal, given by Sir Alan Ward (formerly Ward LJ), in a case in which both parties appeared in person:
“It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away.” (Wright v Michael Wright (Supplies) Ltd  EWCA Civ 234 at .)
The issue is important to barristers for two reasons. First, they have a duty to assist litigants in person in court, and the court itself, for example by drawing attention to relevant primary law, such as law reports, whether it assists their own client or their unrepresented opponent (see Code of Conduct, para 708(c) ). Second, they should be aware of the heightened risk of complaints to the Bar Standards Board by litigants in person who perhaps don’t appreciate the role played by professional advocates in an adversarial system. Such complaints against barristers have increased alarmingly in recent years (see BSB, Professional Conduct Department Trends and Performance Third Quarter Report 2012/13).
In the last month, both the judiciary and the Bar have responded to the problem with publications offering help and guidance to litigants in person.
The judicial version comes from the Civil Justice Council and is limited to the type of litigation indicated by its title, A Guide to Bringing and Defending a Small Claim. Nevertheless, it provides useful guidance on where to get advice, on deciding whether you really need to claim or defend a claim, web links to forms (such as a claim form), gives examples of a typical claim and how it might be progressed, what sort of evidence will be needed, how to prepare for the hearing, when to speak and how to address the judge, and how to appeal if you don’t like the decision. There’s actually quite a lot of information in its 30 pages, including a two-page “Jargon Buster” containing definitions of technical and legal terms.
For a much more detailed approach to this type of litigation, Small Claims Procedure in the County Court offers a practical guide which any reasonably intelligent litigant ought to be able to use. Now in its fifth edition, it covers mediation as well as litigation, and is written by a judge (Her Honour Judge Pearl) and barrister (Andrew Goodman) who clearly have practical knowledge of the subject. There are tables and flowcharts to guide litigants through the essential steps in the procedure and useful materials, such as rules and practice directions, set out in an appendix. As you’d expect, the emphasis on case law is not extensive, but the giving of citations to proper law reports is helpful, and this extract from p223 gives a good flavour of the general tone of the writing:
“A failure to give reasons for a judgment decision is itself grounds for appeal. Reasons are necessary in order for a party to consider if they have grounds for appeal. Justice must be seen to be done: Flannery v Halifax Estate Agencies Ltd  1 WLR 377.”
It’s worth pointing out that small claims are one area where litigants in person have generally coped well with the demands of self-representation, not least because the court procedure (and more recently the process of mediation) have been specifically designed to cater for lay litigants on one or both sides of the argument. The same may not be the case for other types of litigation, such as employment, housing and personal injury, where funding has been cut and where the law and procedure may be more complicated and the factual matrix less clear-cut.
The Bar has responded in admirable fashion to the fact that many of those who might otherwise have retained its services will have to soldier on without, in A Guide to Representing Yourself in Court. In a press release, the Bar Council says: “Whether people use barristers’ services or not, we think we have a responsibility to explain and demystify the legal system to anyone who comes into contact with it.”
What one notices immediately about the Bar guide is that the standard of production is more glossy than that of the Judiciary’s guide. Indeed, with all its pictures of barristers’ wigs and pink-ribboned briefs it rather resembles a brochure designed to show you the glories of the Bar which, as a poor litigant in person, you won’t sadly be able to afford now that legal aid has now been withdrawn. This is a shame because the actual contents are generally good.
Of particular value are the sections on cross-examination and on being cross-examined (probably the most daunting and confusing element for a litigant who is also a witness in his own cause). “Do not use cross-examination to make speeches”, it advises on pp23—27, “don’t argue with the witness” and “speak loudly, slowly and clearly”.
Though attractively presented, this guide is not going to provide the nervous litigant in person with everything they need to go it alone in court. No doubt a second edition will iron out some of the slightly patronising language and oversimplification (for example, to describe an appeal as “to have the case heard again” (p28) may raise unwarranted expectations). But it’s a good starting point, and hopefully will help allay some of their fears and suspicions about the way professional advocates work. There is also a fairly oblique reference to a barrister’s duty to assist on the law, on p25:
“The judge will try hard to think about the arguments that you would be making if you were a lawyer. The lawyers for the other side should talk to the judge about any law that is damaging to their case (and supports your arguments).”
Lucy Reed is a barrister specialising in family law. Her book, Family Courts without a Lawyer is a clear guide aimed at lay people who find themselves in the position of having to represent themselves in divorce, financial provision and child custody proceedings. These are stressful and emotive disputes, in which it is especially difficult for litigants in person to achieve the necessary objectivity to present their case successfully. Reed’s book talks them through the process step by step, explaining in separate chapters “What to expect at court”, “General procedure”, “Evidence” and “Managing and running your case”.
Much of the book consists of a lay person’s guide to substantive family law, and will be of value whether or not the reader’s problem ends up in court. When it does, they will be armed with a clear explanation of how to go about it.
The book has been updated to reflect the changes brought into force on 1 April 2013, and as well as setting out the most important current legal materials it includes a helpful list of internet resources for readers to check for later developments. She adds a salutary warning about the reliability (or otherwise) of internet sources generally. She also warns lay litigants to “Be wary of case law … what the court has done in one case does not necessarily apply to your case.”
Much of the Reed’s advice on representing yourself in court would be of value to a litigant in person in a non-family dispute. But for a more general approach covering other areas of law, Francis Manyika’s Representing Yourself in Court: Guide to Civil Law offers a basic and sensible handbook. It covers a variety of types of claim, including building disputes, claims against merchants, debt recovery, personal injury and negligence, and there is a strong focus on procedure, including a full discussion of tracking and costs and a lot of forms. Although the standard of editing is not as good as it might be (the book seems to have been self-published via Amazon) the advice is basically sound:
“[I]n your closing speech you will emphasize only the evidence which has helped your argument. If there has been unhelpful evidence given try to put this in context and to show that the good evidence in your favour outweighs the negative evidence.”
On the other hand, the blurb on the back seems to take an unduly pessimistic view of how the lay reader can expect to be received by the court:
“[Y]ou will find that many judges have very little sympathy for you … They seem to regard [litigants in person] as presumptuous, stubborn, misguided and obsessive fools … who waste the court’s time, require much more effort on the part of the judge (they like to have two sets of lawyers putting all the arguments to them on a plate), and deprive an honest lawyer of his fee …”
Perhaps one should take this with a pinch of salt: after all, it’s a DIY author setting out his stall for DIY litigants, and where equality of arms may be in doubt, it helps to be forewarned.
Paul Magrath is Head of Product Development and Online Content at ICLR, publishers of the official Law Reports since 1865. He is a regular contributor to the ICLR blog and reviews books for a number of legal and literary journals. www.iclr.co.uk.