Hung out to dry
This article was first published in Private Client Adviser on 11 May 2016 and is reproduced by kind permission.
The huge increase in litigants in person is a direct result of LASPO, not a rise in savvy litigants who simply choose to go it alone.
Ever since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the resultant demise of legal aid, the new status quo has faced a great deal of criticism from family law practitioners, legal commentators and the like. The greatest damage of all though, has inarguably been done to the many individuals who can no longer benefit from state-funded legal advice when faced with most family-related legal issues.
A recent House of Commons briefing paper 'Litigants in person: the rise of the self-represented litigant in civil and family cases', has highlighted the problems faced by those individuals, specifically those who must opt to represent themselves in family law proceedings.
The briefing paper reveals what is already apparent to those on the ground; a 22 per cent rise in proceedings involving children where neither party is represented by a solicitor, a 30 per cent increase in litigants in person in family proceedings overall, and a reality where 80 per cent of family cases involve at least one party who is 'going it alone'.
These drastic changes to the landscape of family law have led to some claiming that a two-tier legal system has been created. A stark divide between those who can afford legal support and those who cannot. As a practitioner, I find myself often trying to offer people a behind the scenes type of legal service, where they can seek my advice when they need to, but from necessity must conduct the majority of their matter (often including attendance at court) themselves.
Although undoubtedly, the more technical aspects of a matter are where people's money is best spent in such situations. The daunting nature of attending court alone, particularly in already emotive circumstances is, in my opinion, an unenviable one.
Further problems have been identified in the form of the consequent increase in fee-charging McKenzie friends, revolving around how they are or should be regulated, and crucially whether they lull people into (paying for) a false sense of having legal expertise and support which they ultimately do not.
Perhaps even more concerning is the question of whether the changes to legal aid have actually served to produce the desired effects the government originally anticipated. The briefing paper reflects a decrease in the 'take-up of mediation and ADR services...meaning more cases are dealt with by the courts' - another detrimental effect that was not intended by the government initially.
Furthermore, not only are many litigants in person unable to conduct their cases competently so as to achieve the best result for themselves, evidence shows that this has a knock-on effect in creating problems for the court and the smooth running of its processes overall. This has the result of actually serving to exacerbate the costs that the cuts to legal aid were designed and implemented to address. As if this wasn't bad enough, the simultaneous result in some cases could even be that the misrepresentation (or lack of representation at all) of key evidence and issues could lead to incorrect conclusions being reached.
Despite an indisputable shift towards people choosing to 'shop around' generally, together with a growth of the amount of DIY legal information and advice available thanks to the internet, these factors alone surely cannot be the cause of the rise of litigants in person.
There has to be a valid argument that, were legal advice available to those who comprise the percentage increases the briefing paper reflects, they would not opt to represent themselves. In fact, the briefing paper indicates that the inability to afford legal advice is the primary reason people are increasingly choosing to represent themselves.
The criticism of the legislative changes to legal aid is not dissipating or even decreasing. The more time that passes, the more the long-term and worsening repercussions are condemned. In such a situation, combined now with court closures and increasing court fees, it would seem that the sacred principle of 'access to justice for all' appears to wear thinner at each turn.
In fact, the briefing paper's 'overall conclusion was that [the cuts to legal aid] had harmed access to justice for some litigants.' Whether this conclusion will actually bring much-needed change in an already fiery and fundamental debate, remains to be seen.