Litigants in Person What Can Courts Do June 2014

Faculty of Laws

LITIGANTS IN PERSON:

What can Courts do?

A Special Event 18 June 2014

BACKGROUND PAPERS

1

2

UCL FACULTY OF LAWS UCL Laws has been a leading centre of legal education for almost 200 years. Under the stewardship of current Dean, Professor Dame Hazel Genn, the Faculty continues to uphold its historical reputation as a world-class institution for education and research. It consistently ranks among the top law faculties in the UK for research, teaching and student satisfaction. The Faculty has world-class scholars that range across the full spectrum of legal issues. This research often has a profound real world impact, reflected in its national and international influence on government policy, law and legal practice. http://www.ucl.ac.uk/laws

THE UCL JUDICIAL INSTITUTE The UCL Judicial Institute is the first and only centre of excellence for
 research and teaching about the judiciary in the UK. The Institute’s
 purpose is to provide evidence-based understanding and intellectual 
leadership about the judiciary as a critical social institution and the process of judicial decision-making. The Institute carries 
out cutting-edge research on the judiciary and provides outstanding
 educational opportunities for students, practitioners, judges and those performing quasi-judicial roles. The Judicial Institute is led by co-directors Professor Dame Hazel Genn and Professor Cheryl Thomas and guided by an Advisory Board of distinguished jurists and scholars from both the United Kingdom and abroad. http://www.ucl.ac.uk/laws/judicial-institute

THE UCL CENTRE FOR ACCESS TO JUSTICE Located within the UCL Faculty of Laws, the Centre for Access to Justice combines the unique advantages of clinical legal education with the provision of pro bono legal advice to vulnerable communities, predominately in the areas of social welfare, employment and education law. UCL is unique in its incorporation of casework and social justice awareness into the law degree programmes we offer. Working in partnership with charity organisations and legal professionals, the Centre provides legal assistance to members of the local community while giving students an opportunity to gain hands on experience in meeting legal needs. Understanding the broader implications that a lack of access to justice can have, we take a holistic approach to resolving the legal problems our clients face. http://www.ucl.ac.uk/laws/accesstojustice

3

LITIGANTS IN PERSON: WHAT CAN COURTS DO? UCL JUDICIAL INSTITUTE & THE UCL CENTRE FOR ACCESS TO JUSTICE

SPECIAL EVENT WEDNESDAY 18 JUNE 2014 17:30 – 19:00pm DENYS HOLLAND LECTURE THEATRE UCL FACULTY OF LAWS

This Special Event brings together judges, academics and practitioners to examine what practical steps can be taken in court to secure effective access to justice for the increasing number of litigantsin-person (LIPs) using the courts. The courts and their adversarial procedures have, historically, developed and been designed on the basis that individual litigants are legally represented. Recent changes to legal aid and litigation funding mean that many people are no longer in a position to secure legal representation. Selfrepresentation is likely to increase over time, and may become the norm in certain categories of litigation, presenting significant challenges to litigants in person and to the courts. It is incumbent on the State, if it is to secure both the common law constitutional right of access to the court and the Article 6 ECHR right to fair trial, to reform the justice system and its procedures to enable LIPs to litigate effectively. These Background Papers are aimed at generating discussion at this UCL Laws Special Event around a number of specific issues: •



How to deliver effective, fair court proceedings involving LIPs?

•

If there is a need for more inquisitorial proceedings, what does that involve and what skills must the judiciary develop?

•

What should be the approach of the judiciary to McKenzie Friends, both paid and unpaid?

•

How best to manage persistent and vexatious litigants?

•

What measures have been effective in supporting LIPs in other jurisdictions? How should we assess the measures we have taken in order to improve their efficacy?

•

How to track the growth of LIPs, their impact on the justice system, and the effectiveness of innovative measures?

The discussion at this special event will be held under the Chatham House Rule*. * “When a meeting is held under the Chatham House Rule participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.”

4

PROGRAMME Chaired by Professor Dame Hazel Genn, Dean UCL Laws and Co-Director of UCL Judicial Institute Panel Participants Lord Dyson, Master of the Rolls and Head of Civil Justice Lord Justice Ryder, Court of Appeal, England and Wales Judge Antoine Garapon, Institut des Hautes Etudes Sur La Justice, Paris Bonnie Rose Hough, Centre for Courts & Families, Administrative Office of the Courts of California

Tea will be available in the Cissy Chu Common Room from 16:30. Denys Holland Lecture Theatre: 17:30

Introduction & Context Professor Dame Hazel Genn DBE QC

17:40 Responding to the challenge of LIPs Lord Dyson 17:50

Developments in Family Justice regarding LIPs Lord Justice Ryder

18:00

Inquisitorial Proceedings in France Judge Antoine Garapon

18:10

Building the capacity for justice system innnovation Bonnie Rose Hough

18:20

Questions to the panel and general discussion

19:00

Close, followed by Wine and canapes reception in the Cissu Chu Common Room

5

Biographical notes on the Panel

Professor Dame Hazel Genn DBE QC Professor Dame Hazel Genn is Dean of the UCL Faculty of Laws and co-director of the UCL Judicial Institute. She is an expert on civil and administrative justice and has conducted numerous empirical studies of court and tribunal processes, including studies of the impact of representation on the outcome of tribunal hearings. She has a longstanding interest in access to civil justice and has written widely in this field. She has been involved for many years in developing and delivering training for the judiciary at all levels with a particular emphasis on the perspectives of court users. She served on the Judicial Appointments Commission from 2006-2011. Lord Dyson, Master of the Rolls and Head of Civil Justice The Rt. Hon. Lord (John) Dyson was called to the bar in 1968, before being appointed a Queen’s Counsel in 1980. From 1986 to 1993 he was a Recorder, and then from 1993 to 2001, he was a Justice of the High Court. While a High Court judge he was, from 1998 to 2001, the Presiding Judge for the Technology and Construction Court. In 2001 he was appointed a Lord Justice of Appeal, and from 2003 to 2006 he was deputy Head of Civil Justice. In 2010 he was appointed a Justice of the Supreme Court of the United Kingdom, a position he held until his appointment in October 2012 as Master of the Rolls. As Master of the Rolls, Lord Dyson is the second most senior judge in England and Wales, President of the Court of Appeal’s (Civil Division) and the Head of Civil Justice for England and Wales. He is also Chairman of both the Civil Justice Council and Civil Procedure Rule Committee. In these various roles, he has overall judicial responsibility for the civil justice system, and as a consequence, for the successful implementation of the Jackson Costs reforms. He has taken a particular interest in justice system’s ability to secure effective access to justice for litigants-in-person. In October 2012 he was closely involved in the commissioning of a Judicial Working Party to consider the effect that changes to legal aid provision would have on litigants-in-person and then to make recommendations for reform. Work flowing from that Working Party’s report, which looked at procedural rule changes and made recommendations concerning the role played by McKenzie Friends, is still on-going. Lord Dyson, together with other members of the Judicial Executive Board, has broad oversight of that work. Sir Ernest Ryder Sir Ernest Ryder was called to the bar in 1981, before being appointed a Queen’s Counsel in 1997. From 2000 - 2004 he was a Crown Court Recorder, and from 2001 - 2004, a deputy judge of the High Court. In 2004 he was appointed a Justice of the High Court, and assigned to its Family Division. While a High Court judge he was, from 2009 - 2013, the presiding judge for the Northern Circuit. In 2013 he was appointed as a Lord Justice of Appeal. From 2011 – 2013 Sir Ernest was the judge in charge of the modernisation of family justice. He was responsible for overseeing the practical changes to the system that were required for the establishment 6

of the new Family Court and its procedures and practices. In that regard he has been particularly involved with the development of active case management and the development, within that, of the new more inquisitorial approach to family justice (both through the rules and Practice Directions and through authoritative judicial decisions) that has been necessitated by the reduction in family legal aid and the subsequent growth in litigants-in-person in family proceedings.

Judge Antoine Garapon Antoine Garapon, PhD, former juvénile court judge, has been Secretary- General of the Institut des Hautes Etudes sur la Justice (IHEJ) since 1991 and is also on the editorial committee of the journal Esprit. His publications include: Le Gardien des promesses, le juge et la démocratie (Odile Jacob, 1996), La République pénalisée (with Denis Salas, Hachette, 1996), Bien juger. Essai sur le rituel judiciaire (Odile Jacob, 1997), Que sais-tu de la justice ? (a watercolour by Noëlle Herresnschmidt, for 8th graders), Et ce sera justice. Punir en démocratie (Odile Jacob, 2001, with Frédéric Gros and Thierry Pech), Albert Camus: Réflexions sur le terrorisme (a commentary on texts about terrorism written by Albert Camus and selected by Jacqueline Lévi-Valensi, Nicolas Philippe Publishing co., 2002), Des crimes qu’on ne peut ni punir, ni pardonner (Odile Jacob, 2002), Juger en Amérique et en France. Culture juridique française et common law (with Ioannis Papadopoulos) (Odile Jacob, 2003), Les juges dans la mondialisation (with Julie Allard), Seuil, Peut-on réparer l’histoire? Colonisation, esclavage, Shoah and La raison du moindre État. Le néolibéralisme et la justice (2010). In 2013, Antoine Garapon was commisionned by the French Minister of Justice to report on the role of judges and prosecutors (with Sylie Perdriolle and Boris Bernabé) : La Prudence et l’Autorité (Odile Jacob, 2014). Antoine Garapon also directs the Bien commun collection at Michalon Publishing and hosts a weekly radio program, « Le bien commun », on Franceculture. He became Chevalier de la Légion d’honneur in 2013. Bonnie Rose Hough Bonnie Rose Hough is the Managing Attorney for the Center for Families, Children & the Courts of the California Administrative Office of the Courts (AOC). The focus of her work is helping courts meet the needs of self-represented litigants. Her unit coordinates the California Courts Self-Help Website, which provides over 4,000 pages of legal and procedural information and referrals in English and Spanish. She oversees five grant programs providing $40 million in funding for legal services and court-based self-help programs. Bonnie oversees development of family law forms, rules and procedures, and document-assembly programs. She has edited an award-winning bench guide for judges handling cases involving self-represented litigants. Before joining the AOC, she was in private practice in family law and ran a legal services agency.

7

Participants List Mrs Justice Asplin High Court in England and Wales Mr Justice Baker High Court in England and Wales Dr Nigel Balmer Reader in Law & Social Statistics, UCL Faculty of Laws Sir Geoffrey Bindman QC Lady Justice Black Court of Appeal in England and Wales Mr Justice Blair High Court in England and Wales Richard Brant Researcher & Tutor, Faculty of Law, Lancaster University Lord Justice Briggs Court of Appeal in England and Wales Sir Stanley Burnton Chair, Access to Justice Working Group, JUSTICE Lord Carnwath UK Supreme Court Lord Clarke UK Supreme Court Mr Justice Cobb High Court in England and Wales Godfrey Cole UCL Judicial Institute Training Fellow Professor Lizzie Cooke Law Commissioner for England and Wales Andrea Coomber Director, JUSTICE Professor Judge Jeremy Cooper Upper Tribunal and of the first Tier Tribunal (Mental Health) Mr Justice Cranston High Court in England and Wales HH Judge Cryan Circuit Judge (South East) Mr Carlos Dabezies JUSTICE Lord Justice Davis Vice-President of the Queen’s Bench Division Anna Donovan Lecturer, UCL Faculty of Laws Andrea Dowsett Assistant Secretary to the Civil Justice Council, Judicial Office Davina Duggan Policy Manager, Family Justice, Ministry of Justice Lord Dyson Master of the Rolls and Head of Civil Justice Rebecca Endean Director of Analytical Services, Finance, Assurance & Commerical Group, Ministry of Justice Sir Terence Etherton The Chancellor of the High Court Peter Farr Head of the Master of the Rolls’ Policy Team and Private Office Professor Trevor Farrow Osgoode Hall Law School, Toronto Dame Elizabeth Filkin DBE Amanda Finlay CBE The Low Commission Suzie Forell Senior Researcher, Law & Justice Foundation of NSW Mr Justice Foskett High Court in England and Wales HH Judge Freeland QC Central London Civil Justice Centre Judge Antoine Garapon Secretary General, Institut des Hautes Etudes Sur La Justice Professor Dame Hazel Genn DBE Dean, UCL Faculty of Laws Yvette Genn Cloisters Chambers Michael Greenslade Lead Adjudicator, Parking on Private Land Appeals Lord Justice Gross Senior Presiding Judge for England and Wales Caroline Hamilton Chief Parking and Traffic Adjudicator, PATAS Nick Hanning RWPS Law Mr Justice Hayden High Court in England and Wales Lord Hodge UK Supreme Court Bonnie Rose Hough Managing Attorney for the Centre for Families, Children and the Courts of the California Administrative Office of the Courts of California 8

Lord Hughes UK Supreme Court Lord Justice Jackson Court of Appeal in England and Wales District Judge Tim Jenkins County Court and Family Court at Brentford Dr Jacqui Kinghan Director of Clinical Legal Education, UCL Faculty of Laws Robin Knowles CBE QC 3-4 South Square District Judge Margaret Langley Chair of the London Association of District Judges Lord Justice Laws Court of Appeal in England and Wales District Judge Chris Lethem South Eastern Circuit Sir Brian Leveson President of the Queen’s Bench Division Sir David Lloyd Jones Chairman, Law Commission Andrew Lockley JUSTICE Lady Justice Macur Court of Appeal in England and Wales HH Judge Madge Inner London Crown Court Judith March Director, Personal Support Unit, Royal Courts of Justice Alexandra Marks Judicial Appointments Commission Lord Justice McFarlane Court of Appeal in England and Wales HH Judge Mitchell Central London County Court/Bromley County Court Professor Richard Moorhead Director, UCL Centre for Ethics and Law Sir James Munby President of the Family Division Joe Murphy Ministry of Justice Ruchi Parekh Legal Researcher, JUSTICE Mrs Justice Parker High Court in England and Wales HH Judge Phillips Director of Training, Judicial College Professor Pascoe Pleasence UCL Faculty of Laws Nigel Pleming QC 39 Essex Street Judge Isobel Plumstead Norwich Combined Court and Secretary, Council of Circuit Judges Participants Professor Judith Resnik Yale Law School Shiva Riahi Acting Manager, UCL Centre for Access to Justice Lord Justice Richards Deputy Head of Civil Justice Jenny Rowe Chief Executive, UK Supreme Court Lord Justice Ryder Court of Appeal in England Wales The Rt Hon the Lord Neuberger President of the UK Supremeand Court Dr Sorabji Principal Legal Adviser theSupreme Lord Chief Justice and TheJohn Rt Hon the Lord Hope Deputy President of thetoUK Court Master of the UK Rolls/UCL Judicial The Rt Hon the Lady Hale Justice of Supreme CourtInstitute Lord Justice Sullivan Senior Tribunals The Rt Hon the Lord Mance Justice President of the UK of Supreme Court Lord Sumption UK Supreme Court The Rt Hon the Lord Kerr Justice of the UK Supreme Court Alastair Tallon Court The Rt Hon the Lord Clarke JusticeChairman, of the UK Greenwich Supreme Court Judge Taylor Regional London) The Rt Carol Hon the Lord Wilson Justice ofJudge the UK(East Supreme Court Professor Cheryl Thomas Co-Director, Judicial Institute The Rt Hon the Lord Sumption Justice of theUCL UK Supreme Court Lord Thomas Lord Chief Justice of England and Wales The Rt Hon the Lord Carnwath Justice of the UK Supreme Court Dr Tatiana Tkacukova Centre for Forensic Linguistics, Aston University The Rt Hon the Lord Collins retired Justice, UK Supreme Court HH Judge Walden-Smith Specialist Senior Circuit Judge (Chancery), Central London Civil Justice Centre Greg Watkins Family Business Improvement, HMCTS Teresa Williams Director, Social & Policy, Nuffield Foundation The Hon Mr Justice Adrian Saunders Caribbean CourtResearch of Justice Penny Williams Magistrates’ Association Family Courts Committee Sir Michael Birt Bailiff of Jersey Lord Wilson UK Supreme Court Richard Collas Bailiff of Guernsey Professor Zuckerman Professor of Civil Procedure, University of of Oxford DeemsterAdrian Doyle First Deemster and Clerk of the Rolls, Isle Man The Rt Hon Lady Justice Hallett DBE The Rt Hon Lord Justice Gross

Court of Appeal, Vice President Queen’s Bench Division Court of Appeal, Deputy Senior Presiding Judge 9

10

BACKGROUND PAPERS Litigants in Person: What can courts do?

11

BACKGROUND PAPERS Table of Contents Introduction

14

Part 1: Developing a more inquisitorial approach 15 Introduction 16 Extracts from: • Air Canada and Others Appellants v Secretary of State for Trade and Another [1983] 2 A.C. 394 • Al Rawi & Ors v The Security Services & Ors [2012] 1 AC 531 • Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 • The Family Justice Modernisation Programme, 4th Update • The Judicial Working Group on Litigants in Person: Report • Thomas CJ, Reshaping Justice • Mole v Hunter [2014] EWHC 658 (QB) • Re R (a child) [2014] EWCA Civ 597 • C (a child) [2013] EWCA Civ 1412 • Re W (a child) [2013] EWCA Civ 1227 • Re D [2014] EWCA Civ 315 • Re CJ v Cardiff City Council [2011] EWCA Civ 1590 Part 2: McKenzie Friends 30 Introduction 31 Extracts from: • Judicial Working Group on Litigants in Person Report • Report: Fee-Charging McKenzie Friends • Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881 • Court of Session Rules, rules 12A and 12B Part 3: Managing persistent and vexatious litigants 44 Introduction 45 Extracts from: • Clarke MR, Vexatious Litigants & Access to Justice: Past, Present, Future • Genn, Do-it-yourself law: Access to justice and the challenge of self-representation C.J.Q. 2013, 32(4) • Lester, The Vexatious Litigant Part 4: LIPs: Challenges and Practical Solutions 54 Introduction 55 Extracts from: • Williams, Litigants in person: A literature review • Australian Productivity Commission, Access to Justice Arrangements • Macfarlane, The National Self--Represented Litigants Project: Identifying and Meeting the Needs of Self--Represented Litigants (Final Report) • Dyson MR, Advances in Open Justice in England and Wales 12

• • • • • •

Sorabji, Tinkler v Elliott: Promptly setting aside a judgement given in a party’s absence Handling Cases Involving Self-Represented Litigants: A Benchguide For Judicial Officers (Judicial Council of California Administrative Office of the Courts) A Guide to Bringing and Defending a Small Claim The Interim Applications Court of the Queen’s Bench Division of the High Court - A Guide for Litigants in Person Interim Applications in the Chancery Division: A Guide for Litigants in Person CLIPS - Chancery Bar Litigant in Person Support Scheme

Part 5: Tracking the growth and impact of LIPs and the efficacy of reforms 94 Introduction 95 Extracts from: • Genn, Do-it-yourself law: Access to justice and the challenge of self-representation C.J.Q. 2013, 32(4)

13

BACKGROUND PAPERS Litigants in Person: What Can Courts Do? Introduction The focus of this special event is how the English and Welsh civil justice system may have to change in order to better enable litigants-in-person (LIPs) to secure effective access to justice. It is hoped that the various Background Papers will highlight some initiatives that have already been taken and stimulate a discussion of what further practical reforms might be implemented in the future. Organisation of the Papers Part 1, Developing a more inquisitorial approach, focuses on the issue of whether, and if so to what extent, the justice system may have to modify its traditional commitment to adversarial process. It looks at how a more inquisitorial approach is being developed in family proceedings. In Part 2, McKenzie Friends, the materials set out reform recommendations made by both a Judicial Working Party and the Legal Services Consumer Panel. It sets out the present approach to McKenzie Friends by the English and Welsh courts and contrasts them with the approach recently taken in Scotland. In Part 3, Managing persistent and vexatious litigants, the papers consider present measures used to protect the court from abuse of process. They outline the state of empirical evidence available regarding persistent and vexatious litigants and current understanding of psychiatric issues that may underpin their behaviour. The papers also consider what practical steps might be taken in respect of such litigants Part 4, LIPs: Challenges and Practical Solutions focuses on practical steps that might help LIPs navigate the justice system. It looks at specific recommendations based on empirical studies of LIPs’ experiences, as well as of other individuals (court staff, lawyers, judges). Part 5, Tracking the growth and impact of LIPs and the efficacy of reforms, outlines the steps that have been taken and which ought to be taken to measure LIP numbers, their effect on the justice system and how well reforms aimed at improving their ability to secure effective access to justice achieved that end.

14

PART 1 Developing a more inquisitorial approach

15

Part 1: Developing a more inquisitorial approach Introduction The materials in Part 1 consider the extent to which the justice system should modify its traditional commitment to an adversarial process in order to increase effective access to justice for LIPs. In particular, it considers whether, and the extent to which, the justice system may adopt a more inquisitorial or investigatorial approach to the pre-trial and trial process. The first group of materials sets out the court’s traditional approach to inquisitorial process. The Air Canada and Al-Rawi decisions note the adversarial nature of English procedure and how an inquisitorial approach to trial procedure is impermissible. Al-Medenni exemplifies the traditional approach through setting out the extent to which the court can go behind the way in which the parties have framed the litigation. The second group of materials deals with recent developments that call for a reconsideration of the traditional approach. Developments in family justice have, for instance, explicitly endorsed, and then developed a more inquisitorial approach to litigation and have done so in order to ensure effective access to justice for LIPs. They are an express response to the growth in LIPs. Additionally, reformers have considered whether similar reforms ought to be implemented in so far as civil justice is concerned. A Judicial Working Party has, in this regard, called for consideration of reforms to the Civil Procedure Rules such as the introduction of a dedicated rule or rules relating to LIPs, or the introduction of a more inquisitorial form of process where LIPs are concerned. Thomas CJ’s lecture further raises these considerations, but also calls for consideration of the practical consequences of such reforms i.e., their impact on court resources or on other litigants. What may look like a panacea may bring with it problems of its own. The third group of materials contains recent case law developments. Mole v Hunter suggests that there is no need for civil procedure rule reform, as there is sufficient flexibility in the extant rules to secure effective access to justice for LIPs. It, and Re R, equally echoes Thomas CJ’s concerns regarding the impact that a more inquisitorial process is, and may have, on court resources. Re C and a number of other such cases set out the nature of the more inquisitorial approach that is being developed in family proceedings. They canvass the statutory basis for such an approach, and outline its development from public law to private law proceedings, while setting out a number of ways in which it operates. It remains an open question as to whether and how civil process may develop in similar ways.

  16

Developing a more inquisitorial approach (1) The traditional approach Extract from Air Canada and Others Appellants v Secretary of State for Trade and Another [1983] 2 A.C. 394 Lord Wilberforce, 438 – 439 In a contest purely between one litigant and another, such as the present, the task of the court is to do, and be seen to be doing, justice between the parties - a duty reflected by the word “fairly” in the rule. There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done. It is in aid of justice in this sense that discovery may be ordered, and it is so ordered upon the application of one of the parties who must make out his case for it. If he is not able to do so, that is an end of the matter. There is no independent power in the court to say that, nevertheless, it would like to inspect the documents, with a view to possible production, for its own assistance.

Extract from Al Rawi & Ors v The Security Service & Ors [2012] 1 AC 531 Lord Dyson [21] But even in an area which is not the subject of statute or statutory procedural rules, there are limits to the court’s inherent jurisdiction to regulate how civil and criminal proceedings should be conducted. In my view, there is considerable force in what Professor Martin Dockray said in “The Inherent Jurisdiction to Regulate Civil Proceedings” (1997) 113 LQR 120, 131: “….a matter which is procedural from the position of an applicant may be constitutional in the eyes of the respondent. The fact that procedural law can be described as subordinate or adjectival because it aims to give effect to substantive rules should not conceal the truth that procedures can and do interfere with important human rights, while the means by which a decision is reached may be just as important as the decision which is made in the end. Where procedure is as important as substance, procedural change requires the same degree of political accountability and economic and social foresight as reform of an equivalent rule of substantive law. Major innovations in procedural law should therefore be recognised as an institutional responsibility, not a matter on which individual judges should respond to the pleas of particular litigants. Procedural revolutions should appear first in statutes or in the Rules of Court, not in the law reports. “ [22] For example, it is surely not in doubt that a court cannot conduct a trial inquisitorially rather than by means of an adversarial process (at any rate, not without the consent of the parties) or hold a hearing from which one of the parties is excluded. These (admittedly extreme) examples show that the court’s power to regulate its own procedures is subject to certain limitations. The basic rule is that (subject to certain established and limited exceptions) the court cannot exercise its power to regulate its own 17

procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice. To put the same point in a different way, the court must exercise the power to regulate its procedure in a way which respects these two important principles which are integral to the common law right to a fair trial.

Extract from Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 Dyson LJ [21] In my view the judge was not entitled to find for the claimant on the basis of the third man theory (one which the judge had suggested to the parties but which had not been pleaded by the claimant). It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness. [22] The starting point must always be the pleadings. In Loveridge and Loveridge v Healey [2004] EWCA Civ 173, Lord Phillips MR said this at paragraph 23: “In McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 Lord Woolf MR observed: ‘Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties.’ It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial. Where one party advances a case that is inconsistent with his pleadings, it often happens that the other party takes no point on this. Where the departure from the pleadings causes no prejudice, or where for some other reason it is obvious that the court, if asked, will give permission to amend the pleading, the other party may be sensible to take no pleading point. Where, however, departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended. That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded.” [23] In the present case the claimant’s pleaded case was that Mr Braich and no one else placed the reel on the machine. If the claimant wished to advance the third man theory as an alternative to her primary case, then she had to seek permission to amend her pleadings. It may be that she had sound tactical reasons for not taking this course. To advance such an alternative case was inconsistent with 18

the claimant’s evidence, and might in any event have been interpreted as a sign of weakness. There was no hint of the third man theory in the witness statements, the way in which the case was opened or in the evidence of the claimant’s witnesses. I accept that there was a rather faint-hearted espousal of the theory by Miss Harmer in her closing submissions, but in my judgment it was by then far too late for the claimant to take the point.

(2) A new inquisitorial approach Extract from Ryder J, The Family Justice Modernisation Programme, 4th Update (Judicial Office) A statement of principle about inquisitorial case management is being considered. There is a project to identify the court’s expectations of unrepresented parties and vice versa so that cases involving unrepresented parties are not unfairly prejudiced in terms of their process. This will involve the provision of significant new materials to assist both represented parties who appear against those who are unrepresented and unrepresented parties to understand the expectations of the court and to abide by its procedures and practices. As part of the modernisation programme we intend to pursue a separate project which looks at private law reforms. Quite apart from a careful reconsideration of the court’s case management processes having regard to the number of litigants who may fall out of scope of public funding and the benefits of mediated resolutions, there are primary legislative changes proposed by Government which include the concept of shared parenting and amendments to section 8 of the 1989 Act. ... To return to the 26-week pathway in public law proceedings . . . the legal environment that remains is a welfare i.e. inquisitorial environment not an adversarial fact finding environment. The problem to be solved is essentially placement which may of course include the success of rehabilitation, the feasibility of kinship options and consequential contact. Even as respects “planned and purposeful delay” cases decisions can be made in principal within 26 weeks. Courts will be encouraged to identify whether in principle a parent will be in a position within the timetable for the child to resume care. If that decision is made within 26 weeks it follows that planned and purposeful delay might include the use of court based supervision under validated and research based options such as the FDAC court whose success has been clearly established. “Within this welfare environment it is likely that the court will start from the proposition that only such expert evidence as is necessary to decide a relevant issue upon which the ultimate decision is based should be ordered. Changes to the rules and practice directions relating to experts will make provision for this approach. In standard track cases it is likely that if any expert is needed that expert will be a single expert for a party or one agreed expert. This is not a quasi-inquisitorial approach. It is a full inquisitorial approach with the court in the driving seat in relation to the issues to be tried and the evidence which is necessary for that hearing to be conducted fairly. It is anticipated that within the review of rules and practice directions, consideration will be given to a system for urgent case management appeals.

19

Extract from The Judicial Working Group on Litigants in Person: Report (Judicial Office) (July 2013), p.31 (http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/lip_2013.pdf ) The Judicial Office should undertake, urgently, further work to assess the merits of three proposals: • Provision of a dedicated rule that makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person. • Introduction of a specific power into CPR Rule 3.1 that would allow the court to direct that, where at least one party is a litigant in person, the proceedings should be conducted by way of a more inquisitorial form of process. • Introduction of a specific general Practice Direction or new Civil Procedure Rule that would, without creating a fully inquisitorial form of procedure, address the needs of litigants in person to obtain access to justice while enabling courts to manage cases consistently with the overriding objective.

Extract from Lord Thomas CJ, Reshaping Justice, (Justice Lecture) (3 March 2014) http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/lcj-speech-reshaping-justice.pdf

[29] We have to keep an open mind even on radical options. For example, to some a change to a more inquisitorial procedure seems like the obvious or the only solution to the present situation we find ourselves in with the increase in litigants-in-person and the need to both secure a fair trial for all whilst doing so within limited and reducing resources that have to be distributed equitably amongst all those who need to resort to the courts. It might be said by them that to attach to it the label of “inquisitorial” was doing it a disservice, as it was really little more than the active interventionism characteristic of much pre-trial procedure, case and trial management. But I think it is right to refer to it as inquisitorial, because the essence of the change would be a much greater degree of inquiry by the judge into the evidence being brought forward. [31] . . . Questions such as how is the justice system to operate an inquisitorial process effectively need to be considered. What effect would that have on the ability to give other cases their fair share of the court’s time and resources? What consequences would it bring to, for instance, the efficient use of judicial time? Would an increased workload mean we would need more judges, or need to introduce a new cadre of junior judges? What effect would it have on the structure of our courts, and courts administration? What would be its cost? [32] These questions can all be multiplied, not least when we they have to be considered in a wider context. Continuing reform of the legal profession as a practical consequence of the 2007 Legal Services Act, amongst other things. The nature of and consequences of modern IT provision to the courts, on court processes, not least the management of cases, and on legal practices. Simplification of procedure for lower value cases and its consequences. All these, and many more issues, are interrelated. We cannot look at potential options for reform in isolation.

20

(3) Inquisitoriality – the developing case law Extract from Mole v Hunter [2014] EWHC 658 (QB) Tugendhat J THE PROCEDURE ADOPTED 107. It is not uncommon for there to be defamation actions in which both sides are litigants in person, as in this case. And in such cases the litigants normally have great difficulty in complying with the requirements of the CPR. 108.

Ms Hunter and Ms Mole each presented their cases to me with care and restraint. They have been more successful than many litigants in person in what they have each been attempting to achieve. In many cases the procedural history is much worse than it is in the present case.

109.

In the present case it appears that each party has received some advice from someone with legal knowledge, and that too is not uncommon. But that is no substitute for representation by a lawyer competent to give advice in the field of defamation.

110.

One of the reasons why claimants bring actions in person is that it is easy for disgruntled individuals to post defamatory allegations on the internet. These publications can be very damaging if the person making the allegation succeeds in attracting any viewers. In the past it was more difficult for disgruntled individuals to be able to inflict serious damage to the reputations of those with whom they were in dispute.

111.

Because both sides were litigants in person, I conducted the hearing by asking first Ms Hunter and then Ms Mole about each of the matters complained of in the counter claim. I then gave each of them an opportunity of asking questions of the other. Ms Mole chose to ask no questions. I then went through the chronology of events as I understood them to be, inviting each of them to correct or complement the understanding I had formed on my own reading of the papers and to make their submissions. Before doing this I invited each party for their consent to the procedure I proposed to adopt, although in my view CPR r.3.1 (2) (m) is sufficiently wide to make such consent unnecessary. I also indicated that I also proposed to hear both applications before me before making a ruling on either of them.

112.

This procedure may be an example of what Lord Thomas CJ referred to in a lecture to Justice the week after this hearing (on 3 March 2014) when he cited The Judicial Working Group on Litigants in Person: Report at paras 2.10, 5.11 and page 33. This Report recommended that there be consideration of: “Introduction of a specific power into CPR Rule 3.1 that would allow the court to direct that, where at least one party is a litigant in person, the proceedings should be conducted by way of a more inquisitorial form of process in civil proceedings where both or at least one party is represented”

113.

If so, then such form of process is already used by judges and Masters in this field of the law, pursuant to the general powers under CPR r.3.1 (2)(m). But the introduction of a specific power into CPR r.3.1 would not suffice by itself to resolve the problems.

21

114.

Litigation between two litigants in person places great demands upon the court. Some of the reasons are referred to in the Report at para 3.14ff. As is commonly the case (Report para 3.17), the papers in this case were presented to me in four separate bundles in no chronological order. In addition I had to search the court file for documents which the parties had not themselves produced or included in the bundles prepared for the hearing, but which were obviously relevant. This is work which is normally done by lawyers representing the parties, and it is usually done by junior lawyers.

115.

But if the work is not done by or for the parties, it still has to be done by someone in order for the case is to be tried justly. Masters and judges have no legally qualified assistants, and so in practice they must do the work themselves, if they can.

116.

However, it is a waste of resources for this elementary work to be done by judges and Masters. One of the reasons why in England and Wales there are relatively few judges compared with the numbers in civil law jurisdictions is that the courts are administered on the assumption that necessary preparatory work will be done by or on behalf of the litigants and at their expense. If it is not done at the expense of the litigants, then it must be done, if at all, at the expense of the state.

117.

There will be significant budgetary and resource implications if the courts are to provide, free of charge to the litigant, and through the costly time of Masters or Judges, services to those who cannot, or who choose not to, instruct solicitors and barristers that they would receive at a small fraction of the cost from lawyers of the junior level appropriate for such work. The Report refers to the issue of resources (paras 2.4, 2.12 and 4.11), but records at para 3.49 that this is a matter for Her Majesty’s Courts and Tribunal Service and the Ministry of Justice.

118.

To understand and decide this case I have not only had to devote to this case a disproportionate amount of the resources of the court. I have also had to deploy experience gained from practice at the Bar in this field of the law. Defamation is a specialist area of the law with which very few judges have any familiarity. The Masters acquire some experience in the course of their work, and, when they are able to do so, they give to litigants such prompting as they are able to give consistently with their duty to maintain judicial impartiality. But in practice any judge who was not a specialist in the field could not realistically be expected to attempt to do justice in a dispute such as the present one. Such a judge would require significantly more time to do the preparatory work, and would be likely to require more knowledge of the law and practice in this field than could be acquired in the time available.

119.

I record that this case is one three consecutive cases which have been conducted before me by litigants in person. One of these, Abbas v Shah, was also a libel action with a lamentable history of delay, and the other, Mensah v Darroch, was in substance a claim for breach of confidence. Only in the last of these has the defendant submitted that the claims should be struck out as totally without merit.

Extract from Re R (a child) [2014] EWCA Civ 597 Black LJ [6] This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because 22

litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal. [7] The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently nonexistent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

Extract from C (a child) [2013] EWCA Civ 1412 Ryder LJ 39. On 21 December 2012 the proceedings were adjourned to a contested hearing because father did not accept the Cafcass recommendation. The first available date was on 6 March 2013 before a Recorder. There were no attempts in the intervening period to update any of the information contained in the Cafcass report, in particular about father and the risk that it is said he presented. Although both parents were given permission to file further statements the question of how father could or should respond to the serious allegations in the Cafcass report was not addressed, that is the key issues were not identified to be answered and a direction for a fact finding hearing was not made. 40. Appointments of the type I have so far been describing take time, particularly where one or more of the parties are litigants in person as a consequence of the provisions of LASPO 2012. If the dispute is not immediately susceptible of conciliation or out of court mediation it will require a lawyer’s analysis. This is after all a court of law. In the absence of lawyers, the judge has to do that and to do that without assistance and sometimes with quite vocal hindrance. That requires more time than in a circumstance where the lawyers can be required to apply the rules and practice directions, produce the witness statements, summaries, analyses and schedules, obtain instructions and protect their lay client’s interests. Where a court is faced with litigants in person the judge has to do all that while maintaining both the reality and perception of fairness and due process. I do not criticise any of the judges involved in this case. Each was handed a case about which he or she knew nothing and given time only to deal with the most pressing issue or two that had arisen. That was fire fighting, it may even have been quality fire fighting but it was not case management. 41. On the morning of 6 March 2013, that is immediately before the contested hearing began, the family court advisor filed and served a 22 page document entitled ‘Chronology of Significant Events’. 23

The court had not given a direction to permit such a step and so far as can be ascertained there was no advance notice of the same. The document was a detailed schedule of hearsay evidence that might have been appropriate if it had been directed by a court as a lawyer’s forensic summary of the allegations and materials that had already been filed. It was not a summary of the evidence filed unless it could be argued to be a record of the source materials for the section 7 report that was filed three months earlier. It should not have been admitted without argument and it was clearly highly prejudicial and of questionable probative value. It became the primary evidential document in the case, replacing the mother and almost everyone else who might have had something to say on a question of fact. The document was made available to father on the morning of the contested hearing that gives rise to this appeal. 42. In that context, father made an application to adjourn the contested hearing. His primary purpose was to adduce up to date evidence about his mental health. He asserted that his treatment was susceptible of successful completion and that he would be able to demonstrate that with materials from the professionals involved. In addition and unknown to the family court advisor, the probation officer she quoted in good faith had been replaced sometime in 2012 and as this court now knows, the risk described by father’s senior probation officer who had detailed knowledge of father’s supervision was fundamentally different. In simple terms, his analysis was that father presented a low risk. 43. It is not surprising that the judge who was new to the case was unimpressed by an application to adjourn given the lengthy delay there had been in getting the first contested hearing listed. Had she known that a fact finding hearing had never occurred she might have been able to find a constructive way to use the hearing to good effect and still afford father the opportunity to update the evidence about risk and to fairly deal with the family court advisor’s materials. 44. The hearing then commenced. The mother did not give evidence to substantiate her allegations and was accordingly not questioned by anyone. As a matter of pure technical form, her document of 12 August 2013 was never admitted into evidence. There was therefore no evidence from mother for father to meet and he was accordingly afforded no opportunity to test the direct evidence of domestic violence. The only evidence came from the family court advisor. As I have remarked, she treated the allegations as fact. She gave evidence based upon her report and her substantial chronology, that is hearsay evidence about the facts in issue as well as reported opinion from other professionals and her own opinion. I do not say that this was entirely inappropriate. It is appropriate for a family court advisor to identify the facts or alleged facts she has relied upon and the opinions of others that she accepts or adopts in coming to her own opinions and recommendations. She is after all a qualified social worker whose skill and expertise are those of an expert in that field. That said, had a fact finding hearing been held, third hand hearsay evidence of facts in issue might not have been given great weight in the absence of the evidence of mother or a concession from father. 45. I do not ignore the possibility that an alleged victim of domestic violence from an allegedly over controlling or dangerous perpetrator may need considerable support to give her evidence. At the very least it should be established just what evidence she is able to give and an appropriate opportunity should be given to the alleged perpetrator to challenge that evidence. That could have been done by case management or, as I shall describe, by a more inquisitorial process that protected the interests of all involved. What was not acceptable in my judgment was the presentation of facts that were in dispute as if they were decided. The judge who heard the case (and who would have had no knowledge of it before she walked into court on the morning) was entitled to know that contrary to the impression given this was a fact finding hearing where the facts were in dispute. The hearing that was conducted was accordingly not a fact finding hearing, it was a welfare hearing which heard about the severe risk that it was said father presented to mother based upon facts that had never been tested let alone determined by a family court. 24

46. To add to the air of unreality the family court advisor gave her oral evidence from behind a screen. Special measures in a family court are not fixed by primary or secondary legislation as they are in the Crown Court. They can however be used in a similar way and for similar reasons. They are a means of facilitating the evidence of someone who is vulnerable so that the quality of their evidence is not damaged by their vulnerability. Children who give evidence often do so with the assistance of special measures such as a video link. It is not inconceivable that a professional witness might need the same facility but it is much less likely: Re W (Care Proceedings: Witness Anonymity) [2002] EWCA Civ 1626, [2003] 1 FLR 329 at [13]. The mischief in this case is compounded by the fact that the family court advisor gave her evidence as an officer of the state behind a screen rendering her effectively anonymous and unseen and she was afforded that facility without due process. If it was said that such measures were necessary that should have been on application to the court on notice to the father and to the mother and full reasons should have been given. There was no such application and if there was neither this court nor the father were aware of it and there is no record of any determination. There is no order. It should not have happened in the way that it did. 47. I have intimated that a more inquisitorial process may help those judges who need to deal with very difficult cases involving litigants in person where emotions can run very high. At the hearing at which the section 7 report was first available there was an opportunity for detailed case management. In less fraught cases this is often a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings. That was the latest of the various hearings at which the key issues of fact and opinion could have been identified and if not resolved, described on the face of an order so that the parties and the court would have been clear about the purpose of the contested hearing. Directions could have included providing short answers to the key issues identified and up to date materials which would have avoided father’s last minute adjournment application and his successful application to this court to adduce additional evidence. 48. At the hearing and given that it would have been clear whether the key issues included the need to make findings of fact, the judge can control the process to ensure that it is fair. Having been sworn, each party can be asked to set out their proposals and to confirm their version of the disputed key facts. They can then be asked by the judge what questions they would like to ask of the other party. Where lawyers are not instructed the judge can then assimilate the issues identified into his or her own questions and ask each party the questions that the judge thinks are relevant to the key issues in the case. It may be appropriate to give the parties the opportunity to give a short reply. In that way the issues can be proportionately and fairly considered.

Extract from Re W (a child) [2013] EWCA Civ 1227 (public law proceedings) Ryder LJ 36. Although it is conventional to speak of facts having to be proved on the balance of probabilities by the party who makes the allegation, proceedings under the 1989 Act are quasi-inquisitorial (quasiinquisitorial in the classic sense that the court does not issue the process of its own motion). The judge has to decide whether sufficient facts exist to satisfy the threshold (the jurisdictional facts) whether or not the local authority or any other party agree. Furthermore, the basis upon which the threshold is satisfied is a matter for the judge, not the parties. It is a question of jurisdiction, not just the facts in issue between the parties. To that end, if the judge directs that an issue be settled for determination, then absent an appeal, the issue will be tried whatever any party may think about that. As Pitchford LJ said in R (CJ) v Cardiff City Council [2012] 2 All ER: “[21] … The nature of the court’s inquiry under the 1989 Act was inquisitorial. To speak in terms of a burden of establishing precedent or jurisdictional fact was inappropriate. 25

[22] … I am persuaded that the nature of the inquiry in which the court is engaged is itself a strong reason for departure from the common law rule which applies a burden to one or other of the parties. I gratefully adopt my Lord’s analysis that the High Court is exercising its supervisory jurisdiction and in so doing is applying the rule of law. Neither party is required to prove the precedent fact. The court, in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability ... 71. It can be stated without question that once a full care or supervision order is made the family courts’ functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued. That applies equally to the High Court whether in the Family Division of the High Court in the exercise of its inherent prerogative or Convention jurisdictions or in the Queen’s Bench Division of the High Court in the exercise of its public law jurisdiction in the Administrative Court. 72. Within proceedings, however, the local authority in common with all other parties, are bound by the case management decisions of the court. It is the court which decides what the key issues are, that is the matters of disputed fact and opinion that it is necessary to determine in order to make the ultimate decision asked of the court. It is the court which decides the timetable for the child having regard to the welfare of that child and then the implications of that welfare timetable upon each of the interim procedural questions that it is asked to decide. It is the court which decides the timetable for proceedings. The court decides whether there are sufficient facts which if found would satisfy the threshold and provide the jurisdiction to make orders and it is the court which decides what evidence is necessary to answer the key issues and the ultimate decision, whether by directing the local authority or the other parties to provide the same or, if it is necessary, authorising the instruction of an expert on the question. 73. The making of findings of fact and value judgments is not confined to those matters which a local authority seeks to pursue once proceedings have begun. That much is clear, the court can decline to permit the local authority to withdraw proceedings and can impose upon them an order that they did not or no longer seek. 74. The court is not dependent on a willing party. Indeed an unwilling party who flouts the court’s orders may find itself in contempt, even if it is an agency of the State such as a local authority. It is necessary to point out for the discussion which follows that the court’s orders are to be complied with. They are not preferences, requests or mere indications: they are orders and non-compliance with orders should be expected to and will usually have a consequence. 75. As McFarlane LJ helpfully describes in Re G (A Child) [2013] EWCA Civ 965 at [44], if the threshold criteria in section 31 are capable of being satisfied, the court must evaluate “which set of arrangements for the child’s future care are to be endorsed by the court’s order … by affording paramount consideration to the child’s welfare (the welfare evaluation)”. This is not the place to set out the detail of the important guidance set out in Re G as to the use of the welfare checklist in section 1(3) in conducting the welfare evaluation and the importance of that evaluation being undertaken in the context of the distinct welfare provisions in the Adoption and Children Act 2002 (and in particular section 1(4)(c)) where the issues before the court include the option of adoption (see paragraphs [44] to [51] and [54] to [56]). For the purposes of this judgment, the important principle to recall from the judgment of McFarlane LJ in Re G is his critique of the linear approach and his description of the right 26

approach to welfare evaluation in the court’s consideration of whether to make an order and if so, which order: “[50] The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.” 76. The purpose of setting out these basic but important propositions is to provide a very practical example as well as the legal basis for the use of the court’s power to direct the evidence that it needs to determine the issues it has identified and answer the questions that are before the court. The welfare evaluation and the question what, if any, orders are to be made engages Article 8 of the Convention and the proportionality of that intervention must be justified. One cannot have a clearer description of the imperative than that contained in the Supreme Court’s judgments in In the matter of B (A Child) [2013] UKSC 33. A court cannot apply the yardstick of proportionality in its consideration of what is necessary without having evidence about the options to which it can apply a welfare evaluation. As McFarlane LJ said in Re G at [54]: “What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”. 77. The court has the power to direct evidence for the very reason that it must decide the issues as they become apparent from time to time. It is not for the local authority (or any other party) to decide whether it is going to restrict or limit the evidence that it presents. The local authority is in complete charge of the decision to make an application but from that moment on, it becomes subject to the procedural obligations imposed by the rules and practice directions of the court and the orders of the allocated judge. Procedural fairness for parents, for example in relation to disclosure, notice of decisions made and the reasons for the same, and the obligation to put both sides of the case in statements of evidence including evidence favourable to another party that may be inconsistent with or has the effect of undermining the local authority’s case, are all aspects of the objective inquiry mandated by the Act. Likewise, the powers and duties of the children’s guardian have to be facilitated and respected if the child is to have effective access to justice. The courts directions relating to evidence have to be complied with.

Extract from Re D [2014] EWCA Civ 315 (private law proceedings – extending the approach in public law) Ryder LJ 26 It is superficial to say that in this case D’s father has not inflicted harm directly on his child and that therein lies a distinction with Re P which ought to have led to a different conclusion. D’s father inflicted devastating emotional harm on the whole family including D which he continues to deny. It is difficult to see how in that circumstance and in the absence of any other positive factors, the father can be said to be capable of exercising ‘with responsibility’ his parental rights, duties, powers, responsibilities and authority. 27 It is likewise wrong to say that the mother has failed to satisfy the burden of proof of facts relating to father’s alleged sexual recidivism. That is a submission that is becoming ever more prevalent in this court with the advent of parties who are not represented at first instance and who can be excused for 27

not understanding the significance of either the burden or standard of proof. So the submission goes, if a party who has the benefit of a finding from the court has not been put to the obligation of proving it, what the court has done is to subtly reverse the burden of proof. I make it clear this is a distinct submission from one which calls into question whether someone has not had the benefit of procedural protections to which they are entitled. 28 Provided that procedural protections are identified and used by the court, the process of fact finding in family proceedings is quasi-inquisitorial. The welfare of a child may sometimes require a judge to make decisions about facts and/or value judgments that are not asked for by either party. A judge cannot shrink from doing so. That is his function. He must identify such questions and where necessary decide them. Although identified in relation to a different supervisory jurisdiction, the quasi-inquisitorial process to which I have referred was considered and approved in its use by the family courts in public law children proceedings and must as a matter of good practice be available to the same inquiry in private law children proceedings: In the Matter of W (A Child) [2013] EWCA Civ 1227 at [36]: “Although it is conventional to speak of facts having to be proved on the balance of probabilities by the party who makes the allegation, proceedings under the 1989 Act are quasi-inquisitorial ( quasi -inquisitorial in the classic sense that the court does not issue the process of its own motion). The judge has to decide whether sufficient facts exist to satisfy the threshold (the jurisdictional facts) whether or not the local authority or any other party agree. Furthermore, the basis upon which the threshold is satisfied is a matter for the judge, not the parties. To that end, if the judge directs that an issue be settled for determination, then absent an appeal, the issue will be tried whatever any party may think about that. As Pitchford LJ said in R (CJ) v Cardiff City Council [2012] 2 All ER : [21] … The nature of the court’s enquiry under the 1989 Act was inquisitorial. To speak in terms of a burden of establishing precedent or jurisdictional fact was inappropriate. [22] … I am persuaded that the nature of the inquiry in which the court is engaged is itself a strong reason for departure from the common law rule which applies a burden to one or other of the parties … The court in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability.”

Extract from Re CJ v Cardiff City Council [2011] EWCA Civ 1590 Pitchford LJ [21] As originally conceived, Mr Hutchings’ argument on behalf of Cardiff was that there was nothing in the Children’s Act 1989 which might establish strong reasons for departing from the usual rule that he who asserts must prove. During the course of argument, Laws LJ sought Mr Brown’s recognition of the public interest in ensuring the performance of a public function strictly within but up to the limit of that body’s jurisdiction. Both Mr Brown and Mr Hutchings appeared to accept my Lord’s analysis that the High Court’s supervision of the exercise of jurisdiction by an inferior court, or tribunal, or public body was not a matter which could be resolved according to the private interests of the parties. The nature of the court’s inquiry under the Children Act was inquisitorial. To speak in terms of a burden of establishing a precedent or jurisdictional fact was inappropriate. Mr Brown, however, appeared to argue not just that the application of a burden of proof was inappropriate but that in a case of doubt, that doubt should be resolved in favour of the claimant. He suggested that the context, namely a duty “to safeguard and promote the welfare of children”, required a sympathetic approach. It was just as important that 28

jurisdiction was exercised in an appropriate case as it was for jurisdiction not to be exceeded. This is an argument which seemed to contradict the position taken by Mr Brown at the outset when posing what he submitted was the correct question (see paragraph 3 above). Mr Hutchings responded that the effect of the appellant’s argument would be that the local authority owed duties to any person claiming to be a child unless and until the public authority established that the claimant was not a child. I do not consider that the appellant can have it both ways. It seems to me that once the court is invited to make a decision upon jurisdictional fact it can do no more than apply the balance of probability to the issue without resorting to the concept of discharge of a burden of proof. In my view, a distinction needs to be made between a legal burden of proof, on the one hand, and the sympathetic assessment of evidence on the other. I accept that in evaluating the evidence it may well be inappropriate to expect from the claimant conclusive evidence of age in circumstances in which he has arrived unattended and without original identity documents. The nature of the evaluation of evidence will depend upon the particular facts of the case. [22] In the course of argument an issue arose whether a finding by one court as to the establishment of a precedent fact, such as the age of the claimant, was binding upon a court subsequently considering the exercise of a power or duty dependent upon the same precedent fact. There have been two relevant decisions in the High Court by HHJ Anthony Thornton QC, sitting as a deputy judge of the High Court, in AS v London Borough of Croydon [2011] EWHC 2091 (Admin) and Hickinbottom J in R (PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin). We have not received full argument upon the issue and the parties agree that it is unnecessary for present purposes for the issue to be resolved. It is, however, necessary to consider the real possibility that a range of powers and duties exercisable dependent upon the age status of an individual may be raised in the same proceedings. It would be, in my view, highly undesirable for contradictory findings to be made as to the existence of the precedent fact. I am persuaded that the nature of the inquiry in which the court is engaged is itself a strong reason for departure from the common law rule which applies a burden to one or other of the parties. I gratefully adopt my Lord’s analysis that the High Court is exercising its supervisory jurisdiction and in so doing is applying the rule of law. Neither party is required to prove the precedent fact. The court, in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability. I make it plain that I am not proposing that the burden of proof should not be applied in any case in which an individual is claiming a benefit under a qualifying statutory provision. Whether a burden of proof should be applied at all and, if so, where it should rest, will depend upon the terms of the statute conferring the power to act (see the judgments of Baroness Hale and Lord Hope in A and M at paragraph 2 above). In the Court of Appeal of Northern Ireland, the then Chief Justice, Lord Carswell, held, in Kerr v Department for Social Development [2002] NICA 32, using ordinary principles of construction of the qualifying statute, that the claimant bore the burden of establishing his entitlement to a payment in respect of his brother’s funeral expenses, but the Department bore the burden of establishing any of the regulatory exceptions to that entitlement. I would confine my conclusion as to the absence of a burden of proof to the particular decision under the Children Act which faced Ouseley J on this occasion.

 

29

PART 2 McKenzie Friends

30

Part 2: McKenzie Friends Introduction The materials in Part 2 consider the role McKenzie Friends can and should play in assisting LIPs. The first group of materials examines recent recommendations for reform issued in Reports by a Judicial Working Party and by the Legal Services Consumer Panel. Both Reform Reports recommend that the courts adopt a more liberal and consistent approach to McKenzie Friends than has previously been the case; the latter, specifically, endorsing the view that fee-paid McKenzie Friends should be accepted as a legitimate feature of the civil justice system – in effect suggesting that in the absence of legal aid to provide professional legal representation, fee-paid unqualified individuals should be permitted to represent citizens in court. It also sets out recommendations for McKenzie Friend reform made by the New Zealand Law Commission, which are consistent with the approach taken by the Judicial Working Party. The second group of materials presents the current practice in England and Wales and in Scotland. This is contained in Practice Guidance, which summarises the statutory authorities and case law authorities governing McKenzie Friends and the grant of rights of audience and the right to conduct litigation by non-lawyers. It sets out the restrictive approach to the grant of such rights under the court’s inherent jurisdiction; an approach which was assumed by Parliament when it preserved that jurisdiction via the Legal Services Act 2007. The English and Welsh approach is to be contrasted with the approach taken in Scotland, which does not recognise a common law for LIPs to receive reasonable assistance in court from McKenzie Friends. It introduced carefully prescribed discretionary rules of court, which enable Scottish courts to permit the equivalent of McKenzie Friends to offer reasonable assistance to LIPs and to exercise rights of audience. The Scottish rules, unlike those in England and Wales, also prohibit McKenzie Friends from acting for LIPs on a fee-paid basis.

31

McKenzie Friends (1) Reform Recommendations Extract from Judicial Working Group on Litigants in Person Report (Judicial Office) (July 2013), pages 7-9 http://www.judiciary.gov.uk/publications/judicial-working-group-lip-report/ Our report and recommendations 2.8 We begin our report by setting out some of the key issues that litigants in person present for the courts and tribunals, as a basis for recommending measures to help address those issues. Some of the issues cut across jurisdictional boundaries; for example, the fact that litigants in person may struggle to understand and comply with procedural requirements. Others are more prevalent in particular jurisdictions; for example, the difficulties posed by the highly emotive nature of many cases in the family courts. This part of our report contains recommendations that:

• The Ministry of Justice (MoJ) / HMCTS should devote the necessary work and resources to: ◊ Producing, with judicial involvement, appropriate materials, including, especially, audiovisual materials, to inform litigants in person what is required of them and what they can expect when they go to court. ◊ Undertaking, urgently, a thorough review of its web-based information, to ensure that litigants in person can easily access the information they need to understand and decide on the various courses of action open to them, and to prepare for, and present, their case in a court or tribunal.

2.9 The second substantive part of our report looks at training and guidance. Although litigants in person are already a regular feature in daily working life for some judges, for others they are not yet but soon will be. Equipping the judiciary to deal with this challenge through training and guidance is essential. This part of our report contains recommendations that:

• The Judicial College should consider, urgently, the feasibility of developing a training course (or courses) on litigants in person.

• The design of all future training on practice, procedure, and judge-craft should have regard to the fact that a much higher proportion of court and tribunal users will be litigants in person. • The Judicial College should begin, urgently, work to develop a ‘litigants in person toolkit’ for judges, utilising existing draft guidance and the relevant chapter of the Equal Treatment Bench Book.

• The Judicial Office and MoJ/HMCTS should hold, urgently, discussions to establish the most appropriate way to develop a central online resource to which staff and judiciary could easily refer in order to identify nationally available sources of advice and assistance for litigants in person; further work to be informed by the outcome of those discussions.



• Designated civil and family judges, and, where appropriate, chamber presidents, as the most appropriate local judicial figures, should be given joint responsibility for ensuring that the judges in their respective areas are kept fully informed of locally available sources of advice and assistance for litigants in person.

32

2.10 Recognising that one of the fundamental challenges for judges, particularly in the civil courts, is how to give legitimate assistance to litigants in person while remaining fair to represented parties, the next part of our report considers the procedural rules. This part of our report contains recommendations that: • The Judicial Office should undertake, urgently, further work to assess the merits of three proposals: ◊ Provision of a dedicated rule that makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person. ◊ Introduction of a specific power into CPR Rule 3.1 that would allow the court to direct that, where at least one party is a litigant in person, the proceedings should be conducted by way of a more inquisitorial form of process. ◊ Introduction of a specific general Practice Direction or new Civil Procedure Rule that would, without creating a fully inquisitorial form of procedure, address the needs of litigants in person to obtain access to justice while enabling courts to manage cases consistently with the overriding objective. 2.11 In light of the increased significance of the right of litigants in person to call on lay persons for support after 1 April 2013, the next part of our report briefly considers the role of the McKenzie Friend and others who litigants in person may ask to assist them. This part of our report contains recommendations that: • The Judicial Office should consider, urgently, rationalising the historic differences between practice in the court system and practice in tribunals, as part of a wider review of lay assistants.

• As part of its review, the Judicial Office should consider, urgently, the merits of introducing into the CPR and FPR, as has recently been introduced in Scotland, rules governing: i) the exercise of the right to reasonable assistance; ii) the right to conduct litigation; and iii) the right to exercise rights of audience.



• The Head of Civil Justice and Heads of Division should consider, urgently, the terminology that should be used, including whether the term “McKenzie Friend” continues to be useful.

Extract from Report: Fee-Charging McKenzie Friends (Legal Services Consumer Panel) (April 2014), page 17

http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2014%2004%2017%20MKF_Final.pdf

Recommendations 1. Fee-charging McKenzie Friends should be recognised as a legitimate feature of the evolving legal services market. 2.

The training course on litigants in person which the Judicial College has been asked to consider should include content on McKenzie Friends.

3.

Guidance notes issued by professional bodies on litigants in person should include content on McKenzie Friends. 33

4.

The Practice Guidance (issued by the senior judiciary) should be reviewed and amended to portray McKenzie Friends in a more positive way.

5.

Education and advice directed towards litigants in person should set out the benefits of using a McKenzie Friend as one form of support available to them.

6.

A white label consumer guide on McKenzie Friends should be produced, with the assistance of Law for Life, for use by the advice sector.

7.

More details of judgments, which highlight where the rights of McKenzie Friends who have behaved improperly have been restricted by the use of Civil Restraint Orders, should be routinely published on Gov.uk.

8.

The Legal Services Board should review case law on the definition of the conduct of litigation and publish a document which seeks to clarify its meaning. Depending on the findings of this research, the Board should consider recommending to the Law Commission that the law in this area be reviewed.

9.

The Legal Services Board should consider the findings of this report as part of its ongoing work on simplifying legal services regulation.

10.

Automatic rights of audience should not be granted to McKenzie Friends.

11.

The Practice Guidance should be updated to take account of recent case law. In an ideal world, the Panel would like judges to have a wide discretion to grant a right of audience when this would be in the interests of justice.

12.

There should be consistent use of CVs, notices or other simple tools that can help assess the credentials of McKenzie Friends when considering applications for a right of audience to be granted.

13.

External regulation of McKenzie Friends should not be introduced.

14.

Fee-charging McKenzie Friends should form a recognised trade association.

15.

The Civil Justice Council’s draft code of practice should be updated to include measures targeted at the unfair commercial practices described in this report.

Extract from New Zealand Law Commission Report, Review of the Judicature Act 1908, pages 147-150 http://www.lawcom.govt.nz/sites/default/files/publications/2012/02/nzlc-ip29-review_of_the_judicature_act_1908_towards_a_ consolidated_courts_act.pdf

Commission’s view Entitlement As a starting point, the Commission considers that the existing position, namely that self-represented litigants should be able to have a support person with them in court unless that person will obstruct the efficient administration of justice, should be retained. The question becomes, then, whether this over-arching principle should be statutorily recognised. 34

The Commission considers that there is merit in such a provision being included in new courts legislation. A consolidated Courts Act, such as is proposed, should be a fundamental resource for self-represented litigants. They should be able to look at the legislation to see that they are generally entitled to a support person to assist them. It is ironic that, at present, this right is rooted in the common law, which is perhaps the last place that a self-represented litigant can be expected to find it. Any empowering provision would also need to limit the general right, to take into account situations where, for example, the support person is being disruptive or is attempting to subvert the proceedings for other purposes, or is refusing to accept any necessary confidentiality requirements. Given the wide-ranging circumstances in which a court may need to deny a person the assistance of a McKenzie friend, the Commission sees merit in the United Kingdom test whereby the court may decline a selfrepresented litigant’s request for a support person where it is satisfied that “the interests of justice and fairness do not require the litigant to receive such assistance.” Beyond this general principle, the Commission considers that, as in the United Kingdom, it would be useful for there to be some guidance as to the factors that should and should not be taken into account in determining whether to refuse such assistance. It is convenient to deal with this in the next section relating to the role of the McKenzie friend, as it is not proposed that such guidance be included in legislation. Role The question of whether or not the role of (as distinct from the entitlement to) a McKenzie friend should be formally provided for is problematic. It was felt by many submitters that there does need to be some guidance as to the usual role of McKenzie friends and limitations on what they can do, but equally submitters did not want the Commission to be too prescriptive. There seemed to be a general consensus among submitters that the core role of the McKenzie friend is to sit with the self-represented litigant, take notes and quietly offer suggestions and advice. The Commission agrees, and considers that this should form part of the empowering provision, again on the basis that this information should be easily accessible to the self-represented litigant. However, the Commission would not want to go beyond this in the empowering provision. For instance, while submitters were also agreed that McKenzie friends should not typically be able to address the judge directly, an element of flexibility is required. For example, there may be rare situations, such as where the litigant has a speech impediment, where it is necessary for the court to grant the McKenzie friend speaking rights. Legislative recognition The Commission considers that the best approach would be for the empowering provision to include the following elements: the general entitlement to a support person; the test for when the court can refuse to permit this; and the core roles of the support person (what the support person can always do). The Commission also considers that guidelines or rules should be developed as to how the courts will approach the refusal test in (b), and when they will allow a support person to go beyond the core roles in (c). In terms of these, we would support the New Zealand Bar Association’s submission that the United Kingdom Practice Guidance: McKenzie Friends (Civil and Family Courts) could, with modification, be adopted in New Zealand. For instance, these guidelines include the factors that should and should not be taken into account in determining whether to refuse such assistance, matters relating to rights of audience and rights to conduct litigation, and remuneration. Another example is the New Zealand Family Court’s standard form application by the unrepresented party to have a lay assistant, which includes an undertaking that must be signed by the assistant accepting the limits of their role in court, and agreeing to maintain the confidentiality of the proceedings. 35

A lawyer as a McKenzie friend? One submitter supported the idea of lawyers acting as McKenzie friends, although no reasons for this were provided. On the other hand, the Law Society and the Bar Association did not, although the former would allow it in exceptional cases. The Commission concurs with the view expressed by the Law Society that, as lawyers are subject to ethical obligations to their clients and have duties to the court, combining the two could blur the roles and lead to confusion. The Law Society suggested that, if practising lawyers wish to support a person who cannot afford legal representation, the better approach would be for the lawyer to represent the party by acting pro bono as a lawyer, rather than as a McKenzie friend. The Commission agrees. Recommendations R76 New courts legislation should provide for the following with respect to support persons for selfrepresented litigants: (i) A self-represented litigant’s general entitlement to a support person; (ii) The court’s ability to refuse to permit a support person where it is satisfied that, in the particular case, the interests of justice and fairness do not require the litigant to receive such assistance; (iii) The core roles of a support person, namely to sit with the self-represented litigant, take notes and quietly offer suggestions and advice. R77 Guidelines or rules should be developed as to how the courts will approach the refusal test in R76 (ii), and when they will allow a support person to go beyond the core roles in R76 (iii). R78 A barrister and/or solicitor of the High Court of New Zealand should not be permitted to be a support person to a self-represented litigant. Footnote 221 from the Report: We note that, while we use the term McKenzie friend in this chapter, we do so only for consistency with Issues Paper 29 and consider that this term should be replaced with “support person” in new courts legislation. It inhibits access to justice to continue to refer to such “lawyer’s terms” and a self-represented litigant who, on turning up at court was asked whether their support person is a “McKenzie friend”, would quite rightly be confused.

(2) Present Practice in England and Wales and Scotland England and Wales: Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881 1)

This Guidance applies to civil and family proceedings in the Court of Appeal (Civil Division), the High Court of Justice, the County Courts and the Family Proceedings Court in the Magistrates’ Courts.1 It is issued as guidance (not as a Practice Direction) by the Master of the Rolls, as Head of Civil Justice, and the President of the Family Division, as Head of Family Justice. It is intended

1

References to the judge or court should be read where proceedings are taking place under the Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991, as a reference to a justices’ clerk or assistant justices’ clerk who is specifically authorised by a justices’ clerk to exercise the functions of the court at the relevant hearing. Where they are taking place under the Family Proceedings Courts (Childrens Act 1989) Rules 1991 they should be read consistently with the provisions of those Rules, specifically rule 16A(5A). R v Leicester City Justices, ex parte Barrow [1991] 260, Chauhan v Chauhan [1997] FCR 206, R v Bow County Court, ex parte Pelling [1999] 1 WLR 1807, Attorney-General v Purvis [2003] EWHC 3190 (Admin), Clarkson v Gilbert [2000] CP Rep 58, United Building and Plumbing Contractors v Kajla [2002] EWCA Civ 628, Re O (Children) (Hearing in Private: Assistance) [2005] 3 WLR 1191, Westland Helicopters Ltd v Sheikh Salah Al-Hejailan (No 2) [2004] 2 Lloyd’s Rep 535. Agassi v Robinson (Inspector of Taxes) (No 2) [2006] 1 WLR 2126, Re N (A Child) (McKenzie Friend: Rights of Audience) Practice Note [2008] 1 WLR 2743.

36

to remind courts and litigants of the principles set out in the authorities and supersedes the guidance contained in Practice Note (Family Courts: McKenzie Friends) (No 2) [2008] 1 WLR 2757, which is now withdrawn. It is issued in light of the increase in litigants-in-person (litigants) in all levels of the civil and family courts. The Right to Reasonable Assistance 2) Litigants have the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend (MF). Litigants assisted by MFs remain litigants-in-person. MFs have no independent right to provide assistance. They have no right to act as advocates or to carry out the conduct of litigation. What McKenzie Friends may do 3) MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case papers; iii) quietly give advice on any aspect of the conduct of the case. What McKenzie Friends may not do 4) MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii) manage litigants’ cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses. Exercising the Right to Reasonable Assistance 5) While litigants ordinarily have a right to receive reasonable assistance from MFs the court retains the power to refuse to permit such assistance. The court may do so where it is satisfied that, in that case, the interests of justice and fairness do not require the litigant to receive such assistance. 6)

A litigant who wishes to exercise this right should inform the judge as soon as possible indicating who the MF will be. The proposed MF should produce a short curriculum vitae or other statement setting out relevant experience, confirming that he or she has no interest in the case and understands the MF’s role and the duty of confidentiality.

7)

If the court considers that there might be grounds for circumscribing the right to receive such assistance, or a party objects to the presence of, or assistance given by a MF, it is not for the litigant to justify the exercise of the right. It is for the court or the objecting party to provide sufficient reasons why the litigant should not receive such assistance.

8)

When considering whether to circumscribe the right to assistance or refuse a MF permission to attend the right to a fair trial is engaged. The matter should be considered carefully. The litigant should be given a reasonable opportunity to argue the point. The proposed MF should not be excluded from that hearing and should normally be allowed to help the litigant.

9)

Where proceedings are in closed court, i.e. the hearing is in chambers, is in private, or the proceedings relate to a child, the litigant is required to justify the MF’s presence in court. The presumption in favour of permitting a MF to attend such hearings, and thereby enable litigants to exercise the right to assistance, is a strong one.

10)

The court may refuse to allow a litigant to exercise the right to receive assistance at the start of a hearing. The court can also circumscribe the right during the course of a hearing. It may be refused at the start of a hearing or later circumscribed where the court forms the view that a MF may give, has given, or is giving, assistance which impedes the efficient administration of justice. However, the court should also consider whether a firm and unequivocal warning to the litigant and/or MF might suffice in the first instance. 37

11)

A decision by the court not to curtail assistance from a MF should be regarded as final, save on the ground of subsequent misconduct by the MF or on the ground that the MF’s continuing presence will impede the efficient administration of justice. In such event the court should give a short judgment setting out the reasons why it has curtailed the right to assistance. Litigants may appeal such decisions. MFs have no standing to do so.

12)

The following factors should not be taken to justify the court refusing to permit a litigant receiving such assistance: (i) The case or application is simple or straightforward, or is, for instance, a directions or case management hearing; (ii) The litigant appears capable of conducting the case without assistance; (iii) The litigant is unrepresented through choice; (iv) The other party is not represented; (v) The proposed MF belongs to an organisation that promotes a particular cause; (vi) The proceedings are confidential and the court papers contain sensitive information relating to a family’s affairs

13)

A litigant may be denied the assistance of a MF because its provision might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are: i) the assistance is being provided for an improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is using the litigant as a puppet; v) the MF is directly or indirectly conducting the litigation; vi) the court is not satisfied that the MF fully understands the duty of confidentiality.

14)

Where a litigant is receiving assistance from a MF in care proceedings, the court should consider the MF’s attendance at any advocates’ meetings directed by the court, and, with regard to cases commenced after 1.4.08, consider directions in accordance with paragraph 13.2 of the Practice Direction Guide to Case Management in Public Law Proceedings.

15)

Litigants are permitted to communicate any information, including filed evidence, relating to the proceedings to MFs for the purpose of obtaining advice or assistance in relation to the proceedings.

16)

Legal representatives should ensure that documents are served on litigants in good time to enable them to seek assistance regarding their content from MFs in advance of any hearing or advocates’ meeting.

17)

The High Court can, under its inherent jurisdiction, impose a civil restraint order on MFs who repeatedly act in ways that undermine the efficient administration of justice.

Rights of audience and rights to conduct litigation 18)

MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorised individual (i.e., a lay individual including a MF), the court grants such rights on a case-by-case basis2.

2

Legal Services Act 2007 s12 – 19 and Schedule 3.

38

19)

Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a MF. This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.

20)

Any application for a right of audience or a right to conduct litigation to be granted to any lay person should therefore be considered very carefully. The court should only be prepared to grant such rights where there is good reason to do so taking into account all the circumstances of the case, which are likely to vary greatly. Such grants should not be extended to lay persons automatically or without due consideration. They should not be granted for mere convenience.

21)

Examples of the type of special circumstances which have been held to justify the grant of a right of audience to a lay person, including a MF, are: i) that person is a close relative of the litigant; ii) health problems preclude the litigant from addressing the court, or conducting litigation, and the litigant cannot afford to pay for a qualified legal representative; iii) the litigant is relatively inarticulate and prompting by that person may unnecessarily prolong the proceedings.

22)

It is for the litigant to persuade the court that the circumstances of the case are such that it is in the interests of justice for the court to grant a lay person a right of audience or a right to conduct litigation.

23)

The grant of a right of audience or a right to conduct litigation to lay persons who hold themselves out as professional advocates or professional MFs or who seek to exercise such rights on a regular basis, whether for reward or not, will however only be granted in exceptional circumstances. To do otherwise would tend to subvert the will of Parliament.

24)

If a litigant wants a lay person to be granted a right of audience, an application must be made at the start of the hearing. If a right to conduct litigation is sought such an application must be made at the earliest possible time and must be made, in any event, before the lay person does anything which amounts to the conduct of litigation. It is for litigants to persuade the court, on a case-by-case basis, that the grant of such rights is justified.

25)

Rights of audience and the right to conduct litigation are separate rights. The grant of one right to a lay person does not mean that a grant of the other right has been made. If both rights are sought their grant must be applied for individually and justified separately.

26)

Having granted either a right of audience or a right to conduct litigation, the court has the power to remove either right. The grant of such rights in one set of proceedings cannot be relied on as a precedent supporting their grant in future proceedings.

Remuneration 27) Litigants can enter into lawful agreements to pay fees to MFs for the provision of reasonable assistance in court or out of court by, for instance, carrying out clerical or mechanical activities, such as photocopying documents, preparing bundles, delivering documents to opposing parties or the court, or the provision of legal advice in connection with court proceedings. Such fees cannot be lawfully recovered from the opposing party.

39

28)

Fees said to be incurred by MFs for carrying out the conduct of litigation, where the court has not granted such a right, cannot lawfully be recovered from either the litigant for whom they carry out such work or the opposing party.

29)

Fees said to be incurred by MFs for carrying out the conduct of litigation after the court has granted such a right are in principle recoverable from the litigant for whom the work is carried out. Such fees cannot be lawfully recovered from the opposing party.

30)

Fees said to be incurred by MFs for exercising a right of audience following the grant of such a right by the court are in principle recoverable from the litigant on whose behalf the right is exercised. Such fees are also recoverable, in principle, from the opposing party as a recoverable disbursement: CPR 48.6(2) and 48(6)(3)(ii).

Personal Support Unit & Citizen’s Advice Bureau 31) Litigants should also be aware of the services provided by local Personal Support Units and Citizens’ Advice Bureaux. The PSU at the Royal Courts of Justice in London can be contacted on 020 7947 7701, by email at [email protected] or at the enquiry desk. The CAB at the Royal Courts of Justice in London can be contacted on 020 7947 6564 or at the enquiry desk. Lord Neuberger of Abbotsbury, Master of the Rolls Sir Nicholas Wall, President of the Family Division 12 July 2010

Scotland: Extract from Court of Session Rules CHAPTER 12A LAY SUPPORT FOR PARTY LITIGANTS Lay Support 12.A.1.—(1) At any time during proceedings a party litigant may apply to the court for permission to have a named individual assist the litigant in the conduct of the proceedings by sitting beside or behind (as the litigant chooses) the litigant at hearings in court or in chambers and doing such of the following for the litigant as he or she requires— (a) providing moral support; (b) helping to manage the court documents and other papers; (c) taking notes of the proceedings; (d) quietly advising on— (i) points of law and procedure; (ii) issues which the litigant might wish to raise with the court; (iii) questions which the litigant might wish to ask the witness. (2) It is a condition of such permission that the named individual does not receive from the litigant, whether directly or indirectly, any remuneration for his or her assistance. (3) The court may refuse an application under paragraph (1) only if— (a) it is of the opinion that the named individual is an unsuitable person to act in that capacity (whether generally or in the proceedings concerned); or (b) it is of the opinion that it would be contrary to the efficient administration of justice to grant it. 40

(4) An application under paragraph (1) is to be made by motion and accompanied by a document, signed by the litigant and the named individual, in Form 12.A-A. (5) Permission granted under paragraph (1) endures until the proceedings finish or it is withdrawn under paragraph (6); but it is not effective during any period when the litigant is represented. (6) The court may, of its own accord or on the motion of a party to the proceedings, withdraw permission granted under paragraph (1); but it must first be of the opinion that it would be contrary to the efficient administration of justice for the permission to continue. (7) Where permission has been granted under paragraph (1), the litigant may— (a) show the named individual any document (including a court document); or (b) impart to the named individual any information, which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the named individual is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant. (8) Any expenses incurred by the litigant as a result of the support of an individual under paragraph (1) are not recoverable expenses in the proceedings.

CHAPTER 12B LAY REPRESENTATION Application and interpretation 12B.1.—(1) This Chapter is without prejudice to any enactment (including any other provision in these Rules) under which provision is, or may be, made for a party to a particular type of case before the court to be represented by a lay representative. (2) In this Chapter, a “lay representative” means a person who is not— (a) a solicitor; (b) an advocate; or (c) someone having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Lay representation for party litigants 12B.2.—(1) In any cause depending before the court in respect of which no provision as mentioned in rule 12B.1(1) is in force, a party litigant may apply to the court for permission for a named individual (a lay representative) to appear, along with the litigant, at a specified hearing for the purpose of making oral submissions on behalf of the litigant at that hearing. (2) An application under paragraph (1) is to be made— (a) by motion and accompanied by a document, signed by the litigant and the named individual, in Form 12B.2; and (b) subject to paragraph (3), prior to the date of the hearing at which the litigant wishes the lay representative to make oral submissions. (3) The court may grant an application made on the day of the hearing at which the litigant wishes the lay representative to make oral submissions if it is satisfied that there are exceptional reasons why the application could not have been made prior to that day.

41

(4) The court may grant an application under paragraph (1) only if it is of the opinion that it would assist the court to grant it. (5) It is a condition of permission granted by the court that the lay representative does not receive directly or indirectly from the litigant any remuneration or other reward for his or her assistance. (6) The court may grant permission under paragraph (1) in respect of one or more specified hearings in the cause; but such permission is not effective during any period when the litigant is legally represented. (7) The court may, of its own accord or on the motion of a party to the proceedings, withdraw permission granted under paragraph (1). (8) Where permission has been granted under paragraph (1), the litigant may— (a) show the lay representative any document (including a court document); or (b) impart to the lay representative any information, which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the lay representative is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant. (9) Any expenses incurred by the litigant in connection with lay representation under this rule are not recoverable expenses in the proceedings. Confidentiality of documents in process 12B.3. Rules 67.3 and 97.4 (confidentiality of documents in process) apply to an individual permitted to act as lay representative under this Chapter as they apply to a curator ad litem and reporting officer.

42

43

PART 3 Managing persistent and vexatious litigants

44

Part 3: Managing persistent and vexatious litigants Introduction The materials in Part 3 look at the issue of persistent and vexatious litigants. The extracts from the papers by Clarke MR and Professor Dame Hazel Genn outline the approach the courts have taken to managing the litigious behaviour of persistent and vexatious litigants, both under the court’s inherent jurisdiction, now codified to a large extent in the Civil Procedure Rules, and under statute. They also set out the rationale behind such control measures, and the impact such litigants have upon other litigants, society at large and the justice system. The final paper, by Lester, sets such litigant behaviour into a wider context, and looks at psychological explanations for it. The paper suggests a number of practical techniques through which the judiciary can manage such litigant behaviour, while pointing towards a means of resolving such behaviour outwith the justice system.

45

Managing persistent and vexatious litigants Extracts from Clarke MR, Vexatious Litigants & Access to Justice: Past, Present, Future (Conference on Vexatious Litigants, Prato, Italy, 2006) 18.

Vexatious litigation poses a number of threats to the efficient operation of any civil justice system. Those threats stem from the manner in which the vexatious litigant conducts litigation before the courts. Lord Bingham CJ (as he then was), in Attorney-General v Barker, offers perhaps the best description of vexatious litigants, and in doing so lays bare the problems to which they give rise. He said: “The hallmark [of a vexatious litigant] usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action; that the claimant automatically challenges every adverse decision on appeal; and that the claimant refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop.” [2000] 1 FLR 759 at 764

19.

The vice identified by Lord Bingham CJ of such meretricious and persistent litigation is that it poses a threat to the court, individual members of society and society at large. It uses up increasingly large amounts of the scarce financial resources that are available to the courts. It takes up scarce judicial time. Also, it has a deleterious effect on those individuals in society who are the focus of the vexatious litigants’ attention, not only in terms of time and money but equally in wider social terms through the harassing effect of such litigation and the detrimental effect it has on the civil justice system as a whole.

... 21.

The combination of these detrimental effects on the courts and individuals necessarily gives rise to a wider, negative, impact on society as a whole through weakening the court’s ability to properly administer justice. It is not an exaggeration to say that ultimately vexatious litigation, by posing such a threat to the proper administration of justice, tends to undermine the rule of law.

22.

The need to protect the court, its resources, and the general public from the negative effects of vexatious litigation presents a strong prima facie justification for restricting the ability of such litigants to pursue litigation through the courts . . .

23.

. . . vexatious litigation has the capability to undermine the rule of law. If courts are required to utilise their scarce financial and temporal resources on vexatious claims and applications their ability to properly deal with claims and applications that have genuine merit will be diminished. Such claims may not be heard due to lack of time or resources. If heard, the hearing may be delayed for a lengthy period of time. Equally, if heard, a judgment may then be delayed because the judge has to spend precious time dealing with a vexatious litigant, or with other matters that have been referred to him to hear as a consequence of vexatious litigation generally. The fact

46

that it has often been said, from Magna Carta to Bentham, that justice delayed is justice denied does not diminish its truth3. Denial of a hearing presents the application of that maxim. 24.

Delay or denial of a hearing has the potential to undermine the rule of law for the simple reason that it calls into question the court’s ability to fulfil its primary function, which is of course to do justice according to law. It undermines the court’s ability to ensure that claims and applications are decided on their merits and that the court arrives at effective and correct judgments. Where courts are unable to deal properly with genuine disputes in this way the fabric of civil justice, to borrow Sir Jack Jacob’s famous phrase, will wear thin and may well tear through4. If individuals, and society as a whole, arrive at the conclusion, through experience of a civil justice system unable to deal properly with their disputes, that the justice system is unable to deliver justice the risk must arise that they will seek to resolve their disputes in more direct ways, ways which might bring them to the attention of the criminal justice system. All of this tends to undermine the rule of law.

25.

It seems to me that a court is under a duty to act in a way that furthers the rule of law. It does so as courts are not solely concerned with ensuring that an individual’s right of access to justice is satisfied. As Edmund-Davies LJ explained in Associated Leisure v Associated Newspapers: “. . . courts are here to administer justice. The concept of justice is not confined to the interests of the particular litigants; it embraces and extends to the protection of the common weal.” 5

26.

The common weal is protected by ensuring that the proper administration of justice is not undermined or weakened to any considerable degree, and that the rule of law is thus not undermined, whether by the actions of a number of persistent vexatious litigants or more generally. While any court must be very careful, as was recognised as long ago as 1840 by Baron Alderson in Cocker v Tempest, in exercising its inherent jurisdiction to prevent its processes being abused it appears well justified to do so where if it did not the rule of law would be weakened, or if its ability to act as a court of justice would be compromised. Indulging litigants who seek to abuse the court’s process presents too much of a risk to matters of fundamental importance for the court’s to countenance it6.

27.

. . quite apart from what could be called the rule of law, justification of control of vexatious litigation, control can be justified by reference to the right of access to justice. Far from being inimical to that right, control mechanisms are in my view on the one hand wholly consistent with it, whilst on the other do not engage the right at all.

28.

Controls on vexatious litigation are consistent with the right of access to justice for the simple reason that vexatious litigation infringes that very right. Protecting individuals from litigation that infringes the right of access to justice in itself supports that right. It does so because it enables the court to maximise access to justice for litigants who have genuine claims. Moreover vexatious litigation infringes the right of access to justice for, at least, two further reasons.

29.

First, one of the central elements of the right of access to justice is that disputes are adjudicated within a reasonable time. Magna Carta and Bentham resonate in the common law and Article

3 4 5 6

Magna Carta, Chapter 40; Bentham, Principles of Judicial Procedure, with the outlines of a Procedure Code, in The Works of Jeremy Bentham (ed. Bowring) (1843) (Tait, Edinburgh) Vol 2 at 19 Sir Jack Jacob, The Fabric of English Civil Justice, (Sweet & Maxwell) (1987) [1970] 2 QB 450 at 457. (1840 – 1841) 7 M & W 501: “The power of the each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion. ” Cited with approval in Bhamjee at (11).

47

67. Delay or denial of a hearing as a result of vexatious litigants consuming disproportionate amounts of the court’s time and financial resources represents a restriction on the right of other individuals’ very own right of access to justice. This right is not a solitary right, which exists in glorious isolation. It is an indivisible right. It is, as Lord Justice Laws stated correctly, one which is as applicable to claimant and defendant in any one set of proceedings. As he put it, while rejecting an argument that Article 6 of the European Convention could be relied on to justify a claim continuing after a great deal of delay by one of the parties: “It would be wholly lamentable if the salutary provisions of the Human Rights Act – and here, in particular, Article 6 of the Convention – were allowed to be deployed to run a coach and horses through properly considered and established procedural rules whose purpose is to ensure a fair trial to all parties and to the litigation to which they are applied.” 8 30.

The point Laws LJ is making is that the right to fair trial, and court rules designed to implement that right, are as applicable to the claimant as they are to the defendant. If the court is too lenient in favour of a claimant who has failed to progress his case within a reasonable time it runs the risk of denying the defendant his right to receive adjudication within a reasonable time. In assessing the right to a fair trial courts must not forget that the right applies to and encompasses both claimant and defendant at the same time.

31.

It can be said that Laws LJ’s statement is equally applicable to litigants in one set of proceedings and litigants in other proceedings. The grant of disproportionate resources to any one set of proceedings, or one litigant, could infringe the right to a fair trial on the ground that it diminishes the resources available to other litigants. It could be said that for this very reason English civil procedure now imposes a duty on parties to litigation. It is a novel duty; one which has never before been articulated in English procedure and was introduced following Lord Woolf MR’s reforms9. It is the duty imposed on parties to assist the court in furthering the overriding objective of civil procedure. Furthering the overriding objective, which is to act fairly, requires the court and the parties to ensure, amongst other things, that no more than proportionate time and resources are expended on any particular set of proceedings. What is proportionate is assessed by reference to all proceedings before the courts.

... 35.

Finally, it can justifiably be said that vexatious litigation does not in any event engage the right of access to justice. It does not because that right is the right to have genuine disputes properly and carefully adjudicated on their merits. The dispute which the vexatious litigant brings is in most cases one which has already been carefully and properly adjudicated. The vexatious claim is one which seeks to reopen or relitigate a dispute that has already been properly disposed of by the courts. The vexatious claim is thus one which abuses the court’s process. The right of access to justice is not a right to abuse the court’s process. Restrictions placed on an individual’s ability to bring abusive proceedings cannot therefore infringe the right of access to justice.

7 8 9

Union Alimentaria Sanders SA v Spain (1990) 12 EHRR 24; Scopelliti v Italy (1994) 17 EHRR 493 Arogundade v Mayor & Burgess of London Borough of Brent (No 2) [2002] HLR 18 at (21) CPR 1.1, 1.2, & 1.3

48

Extracts from Genn, Do-it-yourself law: access to justice and the challenge of selfrepresentation C.J.Q. 2013, 32(4), 411 The phenomenon of vexatious or troublesome litigation is not new. As one commentator remarks “the courts have battled with both the ingenuity and pertinacity of such litigants” since Elizabethan times when it was found necessary to take measures to “avoid trifling and frivolous suits in law in Her Majesties court in Westminster.” Although legal scholars have not devoted much attention to the topic, a few psychiatrists have spent some time analysing the behaviour of vexatious or persistent litigants. A relatively recent study describes different varieties of “querulous” behaviour (from the Latin for plaintive murmuring)— involving the unusually persistent pursuit of a personal grievance in a manner seriously damaging to the individual’s economic, social, and personal interests, and disruptive to the functioning of the courts and other agencies attempting to resolve the claims. Querulous litigants comprise three distinct categories that present with a relatively common constellation of behaviours that may, or may not be manifestations ofmental disorder. These are unusually persistent complainers, indefatigable litigators, and vexatious litigants. Reviewing individuals referred to their clinics—evidently extreme examples of all categories—the authors found that those who used the courts extensively often appeared as unrepresented litigants because they had exhausted their funds or the patience of lawyers, and sometimes because they believed that nobody else could be trusted properly to present their case. A common pattern was an individual who had been the victim of some injustice, but was ultimately led into a “devastating social decline” by the quest for justice—to right the wrong done to them. The distinction between querulous and difficult people is that difficult people will pursue claims filled with a sense of being victimised and refuse to contemplate any but their own version of events—but will, in the end, settle for the best deal they can obtain. Querulousness, on the other hand, Mullen and Lester argue, involves not just persistence, but “a totally disproportionate investment of time and resources in grievances that grow steadily from the mundane to the grandiose, and whose settlement requires not just apology, reparation, and/or compensation but retribution and personal vindication.” To this extent, the litigants will inevitably be frustrated because they are seeking remedies that the courts are unable to offer. In trying to understand how apparently normal people become querulous litigants, Mullen and Lester suggest that people have different vulnerabilities. Some people with low pre-existing vulnerability “may, because of some life event and the severity of the provocation, be precipitated into querulousness while, at the other extreme, are those where querulousness is imminent and requires only a modest stimulus to initiate.” Before becoming embroiled in the pursuit of grievances, many of the cases studied for the research involved people who were functioning individuals, with families and friends and without obvious antisocial traits. They did, however, share some characteristics that potentially made them vulnerable to querulousness “personalities with obsessional traits, selfabsorption, and more than the usual levels of sensitivity and self-reference…Some had limited social networks, were in marriages lacking intimacy, and were people who felt their true abilities had never been adequately recognized: in short, rigid, disappointed people short on trust, and long on selfimportance.” The Personal Support Unit in the Royal Courts of Justice, which provides assistance to unrepresented parties, estimates that around one-third of its 3,000 annual caseload of clients have some form of mental health issue. We cannot know how many LIPs demonstrating abnormal behaviour have been driven to this state by litigation. But whether abnormally persistent or vexatious litigants should have our sympathy or opprobrium, it cannot be denied that they present a significant challenge to the courts and place a strain on judicial and court resources. Since the mid-nineteenth century English courts have taken active steps to restrain various types of activities regarded as repetitive, frivolous, without merit, or pernicious . . . The legislation first enacted at 49

the end of the 19th century has since been exported around the world. Today, legal behaviour judged vexatious in England and Wales continues to be regulated by common law and statute. A person defined as vexatious will be prevented by a court order from issuing proceedings without leave of the court. The Attorney General has the power under s.42 of the Senior Courts Act 1981 (previously the Supreme Court Act) to apply to the High Court for an order to restrict a person who repeatedly makes applications to the court, which the court deems to be without merit. Once a referral has occurred, the Treasury Solicitor will launch an investigation into the litigant’s behaviour in the courts. In determining whether to declare a litigant vexatious or not, the court will consider a number of factors. The precise number of proceedings required to meet the test is not specified in the legislation, but guidance from the Treasury Solicitor suggests that normally they would expect around six separate claims to have been commenced which have been struck out or unsuccessful before an application would be made to the court for an order. The court will take into account all the surrounding circumstances including the general character of the litigation, the degree of hardship suffered by defendants and the likelihood of the conduct continuing if an order is not obtained. Such orders may be either for a specified period of time or indefinite, and may apply to civil proceedings, criminal proceedings or both. It is possible that changes to civil procedure since the Woolf reforms in 1999 have made it easier for litigants to harry the courts with suits that have little merit. Certainly, the number of vexatious litigants is rising rapidly as, we suspect, is the number of litigants in person. The list of those declared habitually vexatious in the United Kingdom (published by the Ministry of Justice) currently has 190 names. The earliest listed name was in 1955 and the most recent was in 2010, but interestingly almost one-third (58) have been listed since 2000. In that year, in a case concerning the fallout from relationship breakdown and contact issues, Lord Bingham defined vexatious litigation and distinguished it from habitual and persistent litigation. He said that the hallmark of vexatious proceedings is that “it has little or no basis in law; that whatever the intention of the proceeding, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of process of the court … in a way which is significantly different from the ordinary and proper use of the court process.” The hallmark of persistent and habitual litigious activity, by contrast, seems to be that “the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action… automatically challenges every adverse decision on appeal; and…refuses to take any notice of or give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop.” There has been particular concern at the rise in LIPs and habitual litigants turning up in the Court of Appeal, and this dates back at least to the mid-1990s. In 2003, the Master of the Rolls reported that there had been a “significant increase of obsessive litigants determined to leave no procedural stone unturned, regardless of whether they have any arguable ground of appeal. Nearly 40% of all who apply for permission to appeal are litigants in person, of whom only one tenth can demonstrate that they have arguable grounds of appeal. Yet each of them is entitled to an oral permission hearing. Each hearing takes about half an hour.” After the case of Bhamjee in 2003, involving a litigant who had made repeated applications to the court, the Court of Appeal experimented with a new procedure for identifying and blocking permission to appeal applications (PTA) deemed to be “Totally Without Merit” (TWM). An evaluation of the experiment conducted over the period of one court term showed that more than two-thirds (68 per cent) of oral PTA hearings involving LIPs were deemed to be TWM as compared with 27 per cent of cases not involving a LIP. Some 77 per cent of paper evaluations involving LIPs were marked as TWM as compared with only 14 per cent of paper evaluations involving represented parties. The most common cases 50

involving LIPs were immigration and asylum; employment appeals; general procedure; and landlord, tenant and possession. Those least likely to involve LIPs were personal injury, judicial review, general commercial and professional negligence cases. The potential drain on court and opponent’s resources is illustrated by a single case observed for the TWM evaluation. This case involved an oral hearing of a permission to appeal application by a persistent LIP. The Court of Appeal judge was there, solicitor for the respondent local authority was there, and counsel for the respondent was there, all having prepared what had become voluminous paperwork. The LIP, however, did not appear. Nonetheless, the LIP’s application was duly considered by those in the court. The current powers of the courts to deal with persistent unmeritorious claims and applications were codified in 2004 and are now set out in the Civil Procedure (Amendment) Rules 2013. Part 3.11 contains the court’s power to impose one of three different types of Civil Restraint Order. A “Limited Civil Restraint Order” stops a party who has made two or more applications that are TWM from making further applications in the same proceedings without first obtaining permission from a specified judge. An “Extended Civil Restraint Order” is wider and prevents further connected applications or claims from being launched without permission. These two-year orders might be considered for someone who has “persistently” issued TWM claims or applications. “General Civil Restraint Orders” prevent any further applications or claims at all without permission from a judge. These orders can be imposed on someone who “persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate.” These orders are for renewable two-year terms. The Ministry of Justice publishes the names of those against whom General and Extended Civil Restraint Orders have been imposed. There are currently 35 general orders and 68 extended orders in force. Cases involving persistent, habitual or vexatious litigants present genuine difficulties for the courts. The line between legitimate pursuit of an arguable case and the inability or refusal to achieve closure after defeat is far from clear or bright, but effective measures to manage TWM litigation need to be pursued. In particular, work needs to be done on finding ways to identify and close down potentially troublesome litigation at an early stage. This is an area where the collection and analysis of data relating to repeat litigation would be of significant benefit. The need to deal with habitual and vexatious LIPs, however, should not divert attention from the challenge relating to the rapidly increasing category of legitimate self-representing litigants grappling with legal problems and disputes.

Extract from Dr. Grant Lester, The Vexatious Litigant, Judicial Officers’ Bulletin, April 2005 Volume 17 No 3 http://www.aija.org.au/acag09/Papers/Lester%201.pdf Difficult complainants may also suffer from a major psychiatric illness, most often schizophrenia. These complainants are easily identified as they have the general signs of the illness, are aggrieved primarily by feelings of persecution and victimisation, and the content of their complaints arises totally from their delusional beliefs, which are often bizarre and in a constant state of flux. As a result, it is often impossible to define, let alone resolve, their complaints. Their preexisting major psychiatric illness requires treatment, rather than the complaint being initially addressed. Others have egocentric personalities and are incapable of viewing any perspective other than their own. They are fearful and suspicious of others and a grandiose sense of entitlement has them constantly over-valuing their own worth. These chronic grumblers simply lurch from irritation to irritation ensuring that their whole life is a series of complaints. 51

At times, these chronic grumblers may become “querulant” (morbid complainants). In general, they have a belief of a loss sustained, are indignant and aggrieved and their language is the language of the victim, as if the loss was personalised and directed towards them in some way. They have overoptimistic expectations for compensation, over-optimistic evaluation of the importance of the loss to themselves, and they are difficult to negotiate with and generally reject all but their own estimation of a just settlement. They are persistent, demanding, rude and frequently threatening (harm to self or others). There will be evidence of significant and increasing loss in life domains, driven by their own pursuit of claim. Over time, they begin to pursue claims against others involved in the management of claims, be it their own legal counsel, judges and other officials. While claiming a wish for compensation initially, any such offers never satisfy and their claims show an increasing need for personal vindication and, at times, revenge, rather than compensation or reparation. Despite 150 years of psychiatric research into querulous paranoia, there is no consensus as to the underlying pathology. Theories range from an underlying organic disease process, similar to schizophrenia, through to psychogenic processes; that is, certain vulnerable characters are sensitised by certain life experiences and are then struck by a key event which triggers their complaining. Preceding the querulousness, they have often received some form of blow to their individual sense of self-esteem or security. This was often in the nature of a loss of relationship, through separation or death, ill health or loss of employment. The key event is usually a genuine grievance and seems to echo previous losses. The key event is often of a type to threaten the (male) status symbols of prestige, position, power, property and rights. Environmental factors influence their complaint. In general, these difficult complainants are middle aged and males predominate 4:1. Prior to the development of the complaint, they are reasonably high functioning, with a past history of education and employment. The majority of querulant complainants have had partners, however, their relationships or marriages are often failing or have ended. It is uncommon for them to have a past criminal history, psychiatric history or a history of substance abuse. ... Managing the persistent complainant There are existing rules for courts to manage difficult complainants. Superior courts have inherent powers to prevent an abuse of process. The policy behind these powers is the protection of courts and the maintenance of public confidence in the administration of justice. To prevent an abuse of process, courts may strike out proceedings which disclose no reasonable cause of action or defence, or which may cause prejudice, delay or embarrassment in the proceedings. The courts may also prescribe certain procedures. For example, the court may restrain a litigant from making oral submissions by requiring that the litigant make submissions only in writing. There is a separate power to prevent a person exercising a right of access to the court. Under the Supreme Court Act 1970 (New South Wales), a litigant may be declared vexatious on application by the Attorney General. A vexatious litigant is prevented from instituting proceedings in any court without leave of the court. Management of the querulant broadly falls into three categories: 1. Management by staff of complaints and ombudsmans’ offices, and by staff from, for example, registry offices or court libraries. 2. Management by the judiciary. 3. Psychiatric management.

52

For the purposes of this article I will only outline guidelines for judicial officers. 1. “First: Do No Harm”. A medical aphorism which highlights your goals, which should be safety and containment rather than completion and satisfaction. 2. Recognition via the six V’s — they display volatile emotions, feel victimised, seek vindication, produce voluminous and vague communications, and vary their demands. 3. Maintain rigorous boundaries. They will rapidly form attachments to those they feel are “favouring” them and feel catastrophically betrayed if the favourable treatment is not maintained. 4. They are responsive to hierarchy and the formality of court must be maintained. 5. While they appear legally hyper-competent, they have a very shallow knowledge of the law. All communication with them should be simple, repetitive, and there should be recognition that their understanding of the law is generally no deeper than the average citizen. 6. It is important to clearly and repetitively maintain their focus on what the court is able to offer in terms of outcomes. 7. More time granted will lead to more confusion. They are disorganised and overwhelmed and more time rarely changes this. 8. Take all threats seriously and be aware of the psychological, as well as physical, safety of self and court staff. 9. Any recommendation that they seek psychiatric support or evaluation will lead to extremely angry and potentially threatening responses. The role of psychiatry is generally limited. However, for those individuals who threaten self harm or harm to others, or carry out aggressive behaviour, mandated psychiatric treatment is important. 10. Never seek to specialise in an individual. Always share the load with others. ...

 

53

PART 4 LIPs: Challenges and Practical Solutions

54

Part 4: LIPs: Challenges and Practical Solutions Introduction The materials in Part 4 look at some of the practical steps taken to enable the justice system to deliver effective access to justice for LIPs. The first set of materials consists of studies of LIP experiences of the justice system. The first, by Williams, summarises the conclusions reached following a review of the available literature. The second, extracted from the recent draft report into Access to Justice in Australia, by the Australian Productivity Commission, assesses the impact LIPs have on the justice system, their experiences of the system and considers what steps can be taken to improve their ability to achieve effective access to justice. The third, by Macfarlane, outlines a number of recommendations, arising from empirical studies, for the production of effective reforms to assist LIPs. The second set of materials consists of suggestions for further reforms aimed at rendering the justice system more accessible to LIPs. Lord Dyson MR’s paper outlines the need to simplify legislation, utilise the internet to improve accessibility to judgments to increase legal literacy and develop Roger Smith’s (formerly Director of Justice) idea of Legal Direct to provide legal advice and assistance via the internet. Sorabji’s paper considers the need for the judiciary and the Civil Procedure Rule Committee to take steps to ensure LIPs understand court orders and consider the need to introduce dedicated rules (or Practice Directions) which modify the general CPR where LIPs are concerned. The third set of materials consists of extracts from materials created to assist LIPs. The first extract is taken from California’s Benchguide for handling cases involving LIPs. It contains a number of practical approaches to assist LIPs, enabling them to better understand the trial process. The remainder of the extracts are drawn from England and Wales. They cover guidance to bringing small claims, guidance to LIPs about making interim applications in the QBD, how to draft a skeleton argument, to prepare a court bundle, an outline of the basic structure of litigation, and, finally, an outline of the Chancery LIP advocacy scheme. The various materials from England and Wales should be considered by reference to the recommendations and conclusions set out in the first set of materials. To what extent, for instance, are the English materials written to the standard Flesch-Kincaid reading age specified in the Macfarlane study? To what extent do they use terminology that LIPs may find problematic? To what extent were they drafted in consultation with LIPs? How might they be improved?

  55

LIPs: Challenges and Practical Solutions (1) Reform Reports and Recommendations Extract from Kim Williams, Litigants in person: A literature review Ministry of Justice (2/11), page 1 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217374/litigants-in-person-literature-review.pdf

Key points •

While some good quality evidence existed, this was limited. Together the studies in this review provide useful indicators of the types of motivations, problems encountered and outcomes for litigants without legal representation (litigants in person). However, there are still a number of gaps in our understanding of this issue.

•

The term litigant in person covers a range of scenarios. Individuals may have received varying degrees of legal advice; may have chosen to litigate or had claims brought against them; and may or may not have themselves participated in proceedings. One UK study suggested unrepresented litigants in family and civil cases were common. Most unrepresented litigants were inactive, particularly in civil cases.

•

It appeared litigants in person tend to be younger, and have lower income and educational levels, than those who obtain representation. Suggested reasons for lack of representation included funding difficulties and the belief that cases were simple enough to be heard without a lawyer.

•

Litigants in person could face problems in court, such as understanding evidential requirements, identifying legally relevant facts and dealing with forms. It was suggested that the oral and procedural demands of the courtroom could be overwhelming.

•

Research with other court participants, such as court staff, the judiciary and other parties’ representatives, suggested they felt compensating for these difficulties created extra work and possibly presented ethical challenges.

•

The evidence on the impact of litigants in person on case duration was mixed. This appeared to be influenced by how active the litigant in person was and by case type. The evidence suggested cases took longer when the unrepresented litigant was active and could take less time when the litigant was inactive. Some studies found that family cases without representatives were less likely to settle, increasing case duration.

•

The weight of the evidence indicated that lack of representation negatively affected case outcomes, although few of the studies reviewed controlled fully for case complexity. This was across a wide range of case types. There were indications that in some cases specialist lay representatives were as effective as legally qualified representatives.

•

A number of studies investigated assistance for litigants in person, presenting positive findings on litigant and court staff satisfaction where such assistance was received. There was little research examining the impact of the various methods of assistance on case outcomes.

56

Extract from Australian Productivity Commission, Access to Justice Arrangements (Draft Report, April 2014) http://www.pc.gov.au/__data/assets/pdf_file/0008/135296/access-justice-draft.pdf Pages 19 – 20 The effectiveness of the adversarial system is premised on parties being on an equal footing, but this is not always the case. Differences in the bargaining power of litigants are most evident when comparing the two extremes — self represented litigants and well resourced, repeat users of the system, such as governments and big businesses. If it is acknowledged that inequalities in bargaining power affect justice, it begs the questions: how might self represented litigants be placed on a better footing; and how might the bargaining power of well resourced litigants be kept in check? When considering whether and how best to assist self represented litigants, context is important. In some tribunals and lower courts, self representation is the norm and poses few problems. However, self represented litigants can be at a disadvantage in more adversarial settings such as higher courts. As Faulks said, there are three ways to respond to self representation, ‘… one is to get them lawyers, the second is to make them lawyers and the third is to change the system’ . . . The Commission considers that ultimately, the civil justice system needs to better accommodate self represented litigants. Many of the changes that would benefit self represented litigants would also benefit other court users. Courts and tribunals have already made efforts to simplify forms and procedures and provide information to support self representation. There is still scope to improve outcomes, but there are limits to the extent to which such measures can assist self represented litigants, particularly in complex cases in higher courts. Self represented litigants in higher courts need more direct and personalised forms of assistance. Equipping judges and court staff through training and clearer rules and guidelines is essential to give them the confidence to assist self represented litigants while meeting their obligations of impartiality. Duty lawyer schemes can help, but legal assistance with basic, discrete tasks that could be offered to self represented litigants before their matter reaches court (or used to divert them away from the court system) also hold promise. Self represented litigants should also be able to rely on assistance from non lawyers, with appropriate protections in place. Pages 62 – 63 Chapter 14: Self represented litigants DRAFT RECOMMENDATION 14.1 Courts and tribunals should take action to assist users, including self represented litigants, to clearly understand how to bring their case. • All court and tribunal forms should be written in plain language with no unnecessary legal jargon. • Court and tribunal staff should assist self represented litigants to understand all time critical events in their case. Courts and tribunals should examine the potential benefits of technologies such as personalised computer generated timelines. • Courts and tribunals should examine their case management practices to improve outcomes where self represented litigants are involved.

57

DRAFT RECOMMENDATION 14.2 Governments, courts and the legal profession should work together to develop clear guidelines for judges, court staff, and lawyers on how to assist self represented litigants within the courts and tribunals of each jurisdiction. The rules need to be explicit and applied consistently, and updated whenever there are changes to civil procedures that affect self represented litigants. Governments should consider how lessons from each jurisdiction can be shared on an ongoing basis. DRAFT RECOMMENDATION 14.3 Governments, courts and tribunals should work together to implement consistent rules and guidelines on lay assistance for self represented litigants.

Pages 423 – 433 Self represented litigants Key points • Context is important when considering the impacts of self representation on the civil justice system. In some tribunals and lower courts, self representation is the norm and poses few, if any, problems. • Higher courts that deal with more complex disputes and questions of law are less suited to self representation. While levels of self representation in these courts are lower, some self representation does occur and is inevitable. • There are legitimate concerns about self representation in higher courts, ranging from a reduced likelihood of a just outcome for the self represented litigant, to the costs and obligations that self represented litigants place on the courts and other parties. • Little is known about the characteristics and impacts of self represented litigants. Courts and tribunals should collect more data to inform policy. • Courts and tribunals already provide users with significant amounts of information, and have substantially changed their processes to make self representation easier. Duty lawyer schemes also offer help on the day in court. However, more should be done. • Judges and court staff need training and clearer guidance on how they can assist self represented litigants while remaining impartial. • Unbundled legal services enable access to some legal advice when full representation is unwanted, unaffordable or unavailable. Basic unbundled legal services can efficiently assist self represented litigants where most needed, such as in complex disputes in formal settings like superior courts. ... Self representation affects outcomes The limited evidence that exists suggests that self representation does lead to worse outcomes for the litigant. For example, Supreme Court of Victoria data show that the success rate of appeals by SRLs in the Court of Appeal was very low — 4 per cent in 2011 12, and zero in 2012 13, compared with 29 per cent for all appeals. An Australian Law Reform Commission (ALRC) survey of Administrative Appeals 58

Tribunal (AAT) case files10 also found that self represented applicants were less likely to be successful: … excluding agency appeals, applicants were successful in 42% of all the sampled AAT cases. An unrepresented applicant ‘won’ (albeit sometimes only in the sense of getting the case remitted) 23% of the time compared with 51% of the time for represented applicants. Where the applicant had a final hearing the figures were 17% ‘success’ for unrepresented applicants and 54% if represented. Research conducted by the University of Wollongong and the Justice Research Centre delivered similar results. (See Gamble and Mohr (1998), ALRC 2000, p. 795) ... The ALRC (2000) noted that some SRLs in the AAT abandon meritorious cases, or persist too long with unmeritorious cases. Webb (2007) claimed that SRLs make more serious errors than lawyers when bringing matters before the court (but around the same number of minor or middling errors). International studies also suggest that self representation negatively affects outcomes, but here too the evidence is limited and comparisons are difficult due to institutional differences. NSW Legal Aid (sub. 68) and Beg and Sossin (2012) cited Canadian and United States studies which show that representation positively influences outcomes. However, a recent United States randomised evaluation found no significant effect on outcomes and, following a review of the literature, virtually no credible quantitative information on the effect of an offer of or actual use of legal representation (Greiner and Pattanayak 2012). Identifying whether self representation per se affects outcomes is difficult because of the problems in separating the effect of self representation from other factors, such as the merit of the claim or defence, or the skill of the litigant (ALRC 2000; VLRC 2008). Using Greiner and Pattanayak’s expression, how do we separate the ‘hopeless, sure win, or representation makes a difference cases’? (2012, p. 2209). These measurement difficulties mean that the studies above need to be interpreted with some caution.

How does self representation affect the justice system? Context is important when considering the impacts of self representation on the justice system. According to the AIJA (2001), the extent to which SRLs have an adverse impact on the justice system varies based on a number of factors, including: • the nature of the jurisdiction (for example, whether it is a court or tribunal) • whether a matter is regarded as routine or complex. An increase in SRLs applying for divorce is regarded as a success by the Family Court, although the presence of SRLs in contested matters is regarded as more problematic (AIJA 2001). Some small claims courts and most tribunals are geared around a norm of self representation. Self representation is more problematic for higher courts. The adversarial nature of their proceedings place a heavy responsibility on parties to provide all relevant facts and law, which is why legal representation is expected (Stewart 2011). The AIJA said: Of particular importance in higher courts are the rules of evidence. The court and tribunal systems are to varying degrees designed 10

Information was collected from 1665 case files finalised during August, September and October 1997 which were considered representative of cases before the AAT during the 1997 98 financial year, with ‘success’ deemed if the decision subject to review was set aside, varied or remitted, either by AAT decision or consent (ALRC 1999a).

59

around professional people able to work efficiently in these environments. (2001, p. 4) SRLs are said to create difficulties for courts by taking up more time and resources than legally represented parties. Legal Aid NSW (sub. 68) said (citing a Canadian study) that SRLs tend to: raise irrelevant concerns to the legal issues in question, cause frustration to judges; prolong the process; submit incomplete documentation; rely on judges to an extent that raises concerns about the appearance of bias; and rely on opposing counsel to an extent that raises concerns about their ability to properly represent the interests of their own client. The Commission is aware that the Supreme Court of Victoria keeps track of the hours that staff spend with SRLs to assess the impact of self representation. The Family Court monitors SRLs as a measure of the complexity of its caseload for contested matters. The Family Court said that: Self represented litigants add a layer of complexity because they need more assistance to navigate the court system and require additional help and guidance to abide by the Family Law Rules and procedures. (AGD sub. 137, p. 14, quoting the Family Court of Australia 2013a) Although evidence of the effect of SRLs is mixed, most studies suggest that they do take up more court resources . . . There is also evidence that SRLs use more tribunal resources. Legal Aid NSW (sub. 68) stated that in social security matters before the AAT, some processes can take three times longer — for example, a preliminary conference which generally lasts 10 minutes can last at least 30 minutes when the applicant is self represented, often with little progress. An ALRC (1999a) assessment of the impact of self representation on case events in the AAT (albeit dated and not taking into account recent reforms) also found that: • • •

cases where applicants are represented more often have consent outcomes and go to a hearing less often represented applicants had significantly more case events before finalisation self represented applicants were more likely to ‘drop out early’, or ‘go the full distance’ to a final hearing.

Others suggested that the costs of SRLs are not properly quantified, despite the persistent anecdotal complaints. The ALRC (2000) commented that any additional costs caused by self representation ‘remain unsubstantiated and unquantified’, while acknowledging judicial statements about the difficulties courts face when parties are self represented. Impact on others Self representation can have effects beyond the individual and the justice system. Legal Aid NSW observed that: The economic and social cost of self represented hearings is not just borne by the self represented individual and the community, but also the other party to the litigation. (sub. 68, p. 51) Dewar, Smith and Banks (2000) reported that judges, judicial registrars and registrars believed that, in 41 per cent of family law cases involving an SRL, the other party was disadvantaged. This is consistent with perceptions in other jurisdictions, for example: 60

In a Nova Scotia study 87.5% of judges thought that self represented litigants were generally disadvantaged by a lack of representation, while 70% thought the other party was also disadvantaged. (Legal Aid NSW, sub. 68, pp. 51–52, citing University of Toronto Faculty of Law 2011, p. 21) Perceptions of fairness on both sides of a case can be negatively affected by the participation of an SRL. The represented party may believe that the court has unduly assisted the SRL, while the SRL may feel that the court has failed to provide the level of assistance required to ensure that he or she could properly participate (Stewart 2011). Several submissions raised concerns about the impact of self representation on the other party where family violence is involved. The Women’s Legal Service Victoria (sub. 33) and the Law Council of Australia (sub. 96) raised this in relation to recent changes to the Victoria Legal Aid guidelines. These changes provide that, where one party is unrepresented at trial in a parenting dispute, the other party is not eligible for legal aid (subject to limited exceptions). Legal Aid NSW noted that it: … particularly holds concerns about cases where an alleged perpetrator of violence or abuse who is self representing is allowed to cross examine the alleged victim or the converse. These practices have led to concern that self representation can lead to further abuse through a court sanctioned process. These practices can result in the additional social and economic costs that arise from family violence. (sub. 68, p. 53) Some jurisdictions have special procedures in place for cross examining witnesses where a self represented person is involved. For example, the Restraining Orders Act 1997 (WA) limits the ability of a SRL who is bound by a restraining order to directly cross examine a person with whom they are in a family relationship, or any child witness. SRLs can make the job of the opposing party’s lawyer more complicated by, for example, causing difficulties in meeting professional conduct requirements (QPILCH and Queensland Law Society 2013; New South Wales Bar Association, sub. 34). QPILCH noted that: Anecdotally, members of the legal profession offer the opinion that a self represented opposing party makes a case more difficult, and that the Judge will go out of her or his way to provide advice and explanations to the self represented party. (sub. 58, p. 23) The New South Wales Bar Association commented on the difficulty faced by barristers in situations involving SRLs: The kinds of issues which arise surrounding self represented litigants mean that some clarification is required regarding the application of the rules in these situations. For example, there is general prohibition restraining a barrister from conferring or dealing directly with the party opposed to the barrister’s client. Further, a barrister must take reasonable steps to avoid the possibility of becoming a witness in the case. Very real difficulties may arise where, for example, a barrister deals directly with a self represented litigant in relation to settlement negotiations and an issue later arises as to what was or what was not said in the relevant discussions and whether or not an agreement was reached in those discussions. (sub. 34, p. 5) 61

Although lawyers may prefer to deal with each other, they are becoming accustomed to SRLs. Dealing with SRLs challenges lawyers to work in a more open manner while advancing their client’s case, and to communicate with clarity and without jargon (Pulsford 2010). When assessing these impacts of self representation — and any consequent policy responses — it is important to adopt a community wide perspective. In a simple, court based dispute, a litigant could be better off if they self represent (for example, in cases where their expected return is not, or is only moderately, affected by having formal legal representation). But in doing so, the SRL could raise the cost to courts. If the savings to the individual outweigh any additional costs imposed on the court system, the community as a whole is better off. Looking at one side of the ledger by, for example, focusing on the impacts on courts alone, can be misleading. Conversely, where a party self represents and this imposes substantial costs — to themselves, the opposing party and the relevant court or tribunal — the community as a whole may be worse off. The question becomes, how can these costs best be avoided? The response need not be through publicly funded legal assistance services — a range of options are available. These are explored in the following section. How effective are current measures, and what more could be done? Faulks identified three ways to respond to self representation: … one is to get them lawyers, the second is to make them lawyers and the third is to change the system. (2013, p. 2) Although many assume that the solution to the ‘problem’ of self representation is to arrange for legal representation, the United Kingdom Judicial Working Group on Litigants in Person presented a different perspective: … litigants in person are not in themselves ‘a problem’; the problem lies with a system which has not developed with a focus on unrepresented litigants. (Judiciary of England and Wales 2013, p. 6) The former Ontario Court of Appeal Justice Osborne’s 2007 Civil Justice Reform Project also said that: … the civil justice system must exist to serve members of the public — whether represented or not. (Beg and Sossin 2012, p. 197) Although there is no clear line indicating when self representation is and is not appropriate, minor or low level disputes in informal settings with relatively clear and straightforward issues in dispute are more suited to effective and efficient self representation. While some participants considered that legal representation in minor claims facilitates efficient proceedings (Adelaide Law School, sub. 16), others said that people should legitimately expect to resolve their disputes without legal representation in tribunals and magistrates’ courts. Making it easier to use the system Efforts to simplify and demystify Australia’s civil justice system in recent decades have made it easier to self represent. Courts and tribunals have assisted SRLs in a number of ways, including through more informal and flexible hearings, simplified forms and procedures, and assisting parties to understand procedures and the issues at hand. There is scope for many of these reforms to be more broadly adopted and further developed. 62

Simplifying the law The law itself is a source of complexity in the justice system (chapter 3 and chapter 5), making it more difficult for people to self represent. Participants noted that the average lawyer, let alone the average person, is struggling with increasing complexity in areas such as social security law and taxation law. QPILCH said: Access to justice starts with participants having an understanding of the framework within which the players operate — the law itself. … Having even a high level understanding of the law can help people recognise when they may require assistance with a legal problem, as well as enable them to use the legal system with more confidence. (sub. 58, p. 14) Legislation that is difficult to read and understand is part of the problem. Unfortunately, in recent times, legislation has reflected social patterns in becoming more complex as it addresses more challenging issues in the face of heavy scrutiny. However society’s awareness and understanding of the law which governs it is heavily dependant on legislation being easily accessible and understood. (QPILCH, sub. 58, p. 14) The President of AAT, and former Commonwealth Attorney General, Justice Duncan Kerr commented to the Commission that the way legislation is drafted can be a problem, especially for people self representing in tribunals. The Commonwealth’s drafting style, ostensibly purposive but in practice more committed to the ideal of precision, was said to have generated legislation which was overly prescriptive, detailed, and often impenetrable. Not only in the obvious areas of taxation and corporations law, but also in the definition of welfare rights and their exceptions and when interrelationships with other legislation had to be considered. Altering any established culture of drafting would not be simple: new drafters follow established protocols unless educated otherwise. But laws passed by the Parliament should be intelligible to a well educated reader — and regulatory costs for litigants, tribunals and courts increase when they are not . . . Simplifying court procedures and forms While court rules and procedures are comprehensible to lawyers and judges, they can baffle SRLs. Lord Woolf observed: Only too often the litigant in person is regarded as a problem for judges and for the court system rather than the person for whom the system of civil justice exists. The true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people. (Webb 2007, p. 167) . . . Legal Aid NSW (sub. 68) argued that SRLs in the family law system are particularly disadvantaged by complex court processes, hampering their ability to resolve their problems and increasing costs for parties and legal assistance services. QPILCH suggested looking to other industries for ways to improve court forms: Courts should consider engaging a plain English language expert to review court forms. While this may appear burdensome and impossible for the complexity of court forms in their current state, the task is not impossible given consumer facing industries such as banks often create disclosure packs for customers in plain English which explain complex provisions. (sub. 58, p. 13) 63

Strict court timelines also cause difficulties for SRLs. Timing can be confusing and unfamiliar, and failure to lodge documents in time can completely extinguish rights. QPILCH suggested that: Registries could assist litigants to understand the complexity of court deadlines through providing a timeline of when documents need to be submitted at the time of filing court documents. This computer generated timeline could serve to alleviate the confusion regarding timelines. (sub. 58, pp. 12–13) Although simplified procedures and court forms can help, they are an inadequate response on their own. As the AIJA (2001) pointed out, expert advice must be given in conjunction with simplified procedure and there is no advantage in creating forms that are simpler than the causes of action for which they are intended. Shifting towards active case management More active case management . . . redefines the role of a judge from a relatively passive role to a more activist one, providing scope for greater judicial intervention to accommodate SRLs where appropriate. Macfarlane’s (2013) study of SRLs in Canada found that, although very few SRLs experienced case management, those who did were far more satisfied. QPILCH (sub. 58) said that case management practices are largely focused on complex and commercial cases, and could be modified to better assist SRLs. It suggested a supervised case list complemented by a practice direction that would allow courts some flexibility for SRLs in litigation against represented parties. A number of courts and tribunals already have practice directions that deal with SRLs. ... Assisting those who deal with SRLs Information and training for those in the civil justice system who work with SRLs can help shift attitudes on the legitimacy of self representation. The judge’s role is particularly important — the SRL’s position of disadvantage can be ameliorated by the trial judge’s duty to ensure a fair trial. Training judges, court staff and lawyers The Senate Legal and Constitutional Affairs References Committee (2009) recommended training for judicial and court officers on assisting SRLs. Faulks (2013) suggested that such training should be part of the orientation of new judges, and should address ethical issues in assisting SRLs as well as skills on managing them in the court room . . . It has also been proposed that lawyers should receive training on how best to deal with SRLs. Faulks (2013) suggested that it should be a requirement for admission to practise, so that lawyers are aware of their obligations when an SRL is the opposing party. The New South Wales Bar Association educates its members on SRLs with its Guide to Barristers on Dealing with Self Represented Litigants (sub. 34) . . . Clearer guidelines for those who work with SRLs Clearer guidance on when, where and how to assist SRLs can increase the capacity of the civil justice system to accommodate self representation. Currently, when it comes to SRLs, judges, court staff and lawyers are in a bind: • judges need to remain (and be seen to remain) impartial and unbiased, while also providing SRLs some level of assistance so as to ensure a fair trial • court staff must only offer procedural advice, without overstepping into the realm of legal advice • lawyers must serve the interests of their client while satisfying their duties to assist the court and adhere to professional ethical obligations. 64

For judges, the degree and nature of assistance required varies on a case by case basis, with much of the guidance found in case law. QPILCH said: The nature of assistance to be provided by the court to a self represented litigant depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case. (sub. 58, p. 23, citing case law) The AIJA (2001) said that each court should have an SRL management plan to ensure that SRLs are dealt with in an appropriate and systematic manner. It has drafted suggested guidelines on how to conduct litigation involving SRLs. The guidelines provide a moderately active role for the judge, emphasising the need for neutrality and cover issues such as testing evidence, putting hypotheses to experts, questioning witnesses, identifying contradictions and inconsistencies in witness evidence, defining matters in issue at an early stage, and advising SRLs of their procedural and evidential rights (Webb 2007). Some jurisdictions provide tailored guidance for judges on how to work with SRLs. For example: • decisions of the Family Court set out guidelines for trial judges in that court • in Queensland, while the Equal Treatment Benchbook (Supreme Court of Queensland Library 2005) provides a detailed set of guidelines, it leaves judges with a great deal of discretion (QPILCH, sub. 58) • New South Wales and Western Australia also have bench books that provide judicial officers with guidance on dealing with SRLs (Judicial Commission of NSW 2006; WA DAG 2009). There are also guidelines for lawyers and barristers on how to deal with SRLs. For example, QPILCH and the Queensland Law Society have published guidelines (QPILCH and Queensland Law Society 2013), as has the New South Wales Bar Association (sub. 34). ... Providing information to SRLs Courts and tribunals provide a variety of information to support effective self representation. SRLs can access general guides and ‘how to’ brochures on law and procedure in both print and electronic form. Courts and tribunals sometimes develop these in consultation with stakeholders such as community legal centres (CLCs). The information provided by the Federal Court on its website was singled out for praise by QPILCH, which said that it is: … very easy to navigate, as information is well presented with many helpful links and the website doesn’t over burden the user with content. Rather, content is categorised clearly under one of six main headings (all using plain English) allowing the user to select the most relevant. (sub. 58, p. 13) Information needs to be constantly reviewed to reflect the changing circumstances of litigation and the needs of SRLs. The Family Court of Australia (2003) acknowledged that providing information is an ongoing process, and that relevant, comprehensive and comprehensible information at appropriate times during proceedings is better than simply handing out a ‘kit’ at the time of hearing. QPILCH (sub. 58) suggested a need to translate more information into other languages. Providing general information to facilitate self help assumes a degree of capability on the part of the SRL. Some suggest that information alone is not effective and needs to be accompanied by advice (AIJA 2001; QPILCH, sub. 58). The American Bar Association (ABA) said: 65

Many, if not most, litigants need more than the procedural assistance offered by these resources. They need to know more than which forms to use, how to docket their cases and what time to appear in court. They need assistance with decision making and judgment. They need to know their options, possible outcomes and the strategies to pursue their objectives. In some cases, pro se litigants need advocates for some portion of their matter. These services can only come from lawyers. (QPILCH 2010, p. 2, quoting an ABA source) The Senate Legal and Constitutional References Committee also cautioned against overreliance on information (alone) as a means to assist SRLs: … undue reliance on legal information services is ill conceived without ongoing evaluation of the extent to which they actually assist SRLs in resolving their matters. Such evaluation must focus on the extent to which they contribute to resolution of the legal problem and not merely the user’s satisfaction with those services. (2004, p. 198) Some sources of information are more personalised and tailored — for example, the Supreme Court of Victoria’s Self Represented Litigants Coordinator. Participants advised that people prefer this type of specific advice about their matter rather than general information. Canada is moving to introduce ‘triage desks’ in courts, with frontline staff providing litigants with information about where to take their case (Rassel 2014). While clearer guidelines can assist courts to provide more tailored and useful advice, there are limits to the assistance they can provide. Also, despite the simplification of legal processes, situations may arise where SRLs find it extremely difficult to undertake part of a legal proceeding on their own -- in these situations, retaining a lawyer may still be of great benefit (Beg and Sossin 2012). Directly assisting SRLs Direct assistance moves away from the self help spirit of providing general information and expecting SRLs to join the dots. It allows for more tailored advice that is specific to people’s needs and circumstances, and assists people who may be less able to self help. Hunter, Giddings and Chrzanowski (2003) noted that interactive services such as legal advice sessions, telephone or in person advice, assistance with documents and letters, and duty lawyers, were the services most frequently used by SRLs. As discussed above, courts are encumbered by restrictions on providing legal advice, which limits the direct assistance they can offer. Woolf (1995) suggested a more open approach, recommending that court staff should be able to advise on remedies, the procedure to pursue those remedies, and the precise manner in which court forms should be completed. Some have also raised the need for court staff to be given qualified immunity so they can more freely provide assistance (Supreme Court of Queensland 2008; Woolf 1995) . . . Duty lawyer schemes Duty lawyers provide free legal assistance to SRLs attending court, generally within or connected to the court building itself. Court staff are the prime referral source. Duty lawyer services are largely delivered via partnerships between LACs and courts, sometimes with the involvement of other agencies (box 14.5). The private legal profession also coordinates a number of pro bono duty lawyer schemes. For example, the Victorian Bar’s Duty Barrister Scheme commenced in July 2008, with duty barristers rostered to 66

appear in the Melbourne Magistrates’ Court on a daily basis, the Dandenong Magistrates’ Court on Monday and Wednesday each week, and on an ad hoc basis in other courts (Victorian Bar nd). In October 2013, a pilot scheme was introduced in the Court of Appeal. A number of tribunals also host duty lawyer schemes. For example, Legal Aid NSW operates a duty lawyer service at the AAT. There is limited evidence on whether duty lawyers help to resolve self represented matters effectively and efficiently. An evaluation of the Dandenong Family Court Support Program undertaken in 1999– 2000 (Family Court of Australia 2003) found that: • assisted cases are resolved more quickly and with fewer court appearances • SRLs generally were satisfied with the legal advice given; very satisfied with the assistance received in the preparation of documents; and found the program very helpful overall • the general opinion of judicial officers was that the program assists the court to function more efficiently. ... The expansion of duty lawyer schemes has often been recommended. The Senate Legal and Constitutional References Committee (2004) considered that an expanded duty solicitor scheme would benefit the justice system by assisting SRLs to better prepare their evidence and narrow the issues in dispute. However, it also noted that lawyers who merely perform a role as a mouthpiece, consulted only minutes before the matter is heard, would not adequately address problems raised by lack of legal representation. The Committee recommended that: … the Commonwealth Government and the state/territory governments provide funding to establish a comprehensive duty solicitor scheme in all states and territories of Australia. The scheme should offer, at the very least, a duty solicitor capacity in courts of first instance (criminal, civil and family) and should provide legal advice and representation on all guilty pleas, not guilty pleas in appropriate matters, adjournments and bail applications, and assistance for self represented litigants to prepare their evidence and narrow the issues in dispute. (2004, p. 201) ... Most duty lawyer schemes are limited by the fact that they provide services on the day of court. QPILCH pointed out that the Civil Justice Council (2011) said that earlier intervention had assisted SRLs in England and Wales: While duty lawyers can give valuable assistance to SRLs on their trial or hearing day, there are serious limits to the amount of value that duty lawyers can really add to a case. In civil litigation, the pre trial steps, the pleadings, discovery, are absolutely critical. The day of trial is often too late to amend a document. [QPILCH’s SRS’s] model of discrete task assistance throughout the proceedings addresses that gap in duty lawyer and other legal assistance schemes. (sub. 58, p. 26) Macfarlane also found that: While many SRL’s appreciated the assistance they received from duty counsel or other pro bono legal services, the study also found dissatisfaction … While this model works well for some SRL’s, other find a time limited opportunity to speak with legal counsel leaves them more confused, and even panicked, than before. (2013, p. 13) 67

Unbundled legal assistance Another way of directly assisting SRLs is via unbundled legal services, where lawyers provide some limited assistance and clients perform other tasks on their own. Unbundling is not new. Some argue that it is just a new label for existing situations in which lawyers provide limited representation, such as the role of duty lawyers (Beg and Sossin 2012). Yet unbundling is wider than the last minute assistance duty lawyers typically provide at the court door. Legal aid providers and community groups already provide unbundled assistance: … legal aid providers and pro bono groups recognized the emergence of a new normal in terms of the prevalence of pro se litigants decades ago. They began by making arrangements with local courts -- arrangements of somewhat questionable status under then existing ethical codes and civil procedure rules -- to allow unbundled assistance in discrete litigation areas. (Greiner, Pattanayak and Jonathan 2013, p. 911) A market more generally supportive of unbundled legal services means more SRLs could afford private lawyers to assist them with certain tasks, and may give more flexibility for government provided aid . . . Greater prevalence of unbundled services could also address the concerns of some who feel that an absence of legal advice, even for small matters, affects access to justice. ... QPILCH’s Self Representation Service (SRS) A relatively recent initiative that provides unbundled assistance for SRLs is QPILCH’s SRS (box 14.1). The Service offers assistance at all stages of litigation including drafting and amending pleadings, advice on disclosure and evidence, settlement negotiation and preparation for trial (Woodyatt, Thompson and Pendlebury 2011). SRLs can obtain initial advice and explanations on court processes, access to technology and, more recently, a free mediation service (CIJ 2013). The basis of QPILCH’s Self Representation Service is an acceptance of the reality that not everyone can be represented by a lawyer on their day in court. Funding of community legal centres and Legal Aid is not adequate, and the generosity of private practitioners working on a pro bono basis cannot fill the whole gap. (QPILCH 2013, p. 31) SRLs who approach the Service are given an initial one hour long appointment and ongoing assistance is provided to people who cannot afford private representation (Woodyatt, Thompson and Pendlebury 2011). The Service: • does not act as a party’s representative or advocate • provides assistance in pre arranged appointments • offers appointments for 45 minutes to one hour in length (sub. 58). This model of direct assistance provides a number of advantages. • It enables a deeper relationship with the client (over door of the court service). There is greater potential to develop trust and to influence the client to take appropriate steps, and more time to help them understand the litigation process. The benefits are two fold: the client is assisted to better communicate their case; and the court receives the benefit of a better prepared participant in the proceedings (Woodyatt, Thompson and Pendlebury 2011). • Independence from courts is seen as a benefit (Banks 2012). • It may assist in ‘screening out’ frivolous, vexatious or unmeritorious cases and divert matters away from courts where appropriate so that court resources can be devoted to those matters that need to be adjudicated (AGD sub. 137).

68

The Service is offered Queensland wide at an annual cost of $300 000, funded by the Queensland Government from a mixture of recurrent and non recurrent funding from the Legal Practitioner Interest on Trust Accounts Fund. In 2012 13, the Service received 317 new applications for assistance and conducted 559 appointments of at least one hour’s duration (QPILCH 2013). The evidence suggests that the Service helps divert people from the court system, and is supported by courts and clients alike (Banks 2012; box 14.6). For example: • •

In 2012 13 the Service discouraged just over 60 per cent SRLs advised from commencing or continuing unmeritorious proceedings (QPILCH 2013; QPILCH, sub. 58). In Queensland’s trial divisions over 2008–10, 82 clients were diverted from the Supreme and District Courts, saving an estimated $800 000. Of the 18 clients who went on to commence proceedings self represented, 13 were counselled to pursue ADR, and eight continued to receive assistance (Woodyatt, Thompson and Pendlebury 2011).

... In July 2013, following successful pilots conducted by QPILCH, former Commonwealth Attorney General Dreyfus announced $4 million funding over four years to enable a national rollout of the service to SRLs in the Federal Court and Federal Circuit Court for social security, discrimination, consumer law, judicial review, bankruptcy and employment law matters (CIJ 2013). A further consideration for governments that fund this model is eligibility criteria. Interactions with eligibility for legal aid and other forms of legal assistance need to be assessed to ensure that government funded discrete task assistance is targeted to those who cannot afford private advice or who do not qualify for other forms of legal assistance. There may be opportunities in exploring alternative funding arrangements while leveraging the advantages of QPILCH’s model. For example, JusticeNet SA, an independent not for profit organisation, operates a similar service in SA’s Supreme Court. The recently commenced 12 month pilot is staffed by pro bono lawyers, and project partners include Flinders University, private law firms and litigation funder IMF (Australia) Limited (JusticeNet SA nd). The Centre for Innovative Justice (CIJ) (2013) suggested a publicly funded model subsidised through fee paying clients. It cited the Salvos Legal model, where litigants with means to pay for an unbundled service support work to assist other SRLs. Given that the SRS has recently been expanded on a national basis, the CIJ suggested that a pilot of the fee subsidisation model could be adopted at one site: … legal aid commissions have, at various times, accepted a level of fee or contribution from some clients for a limited range of services or, as mentioned above, taken out a caveat over a home. It is feasible, then, for legal aid commissions to investigate the development of a fee for service model on a wider basis — in which clients with moderate means, who would otherwise be ineligible under Legal Aid guidelines, can elect to pay for representation by a legal aid lawyer, or a private lawyer who conducts legal aid work, on the basis of the relevant statutory scale. (2013, p. 35) The Commission considers that there would be value in user contributions for unbundled services for SRLs who can afford it. This would create better incentives than subsidising unbundled services free of charge, and would also align with the practices of LACs. It could also offset costs to taxpayers so that funding could be used to assist more litigants. ... 69

Extract from Macfarlane, The National Self-Representation Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (Final Report) (May 2013) http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf

Page 65 The Court Guides Assessment project This project was conducted by Cynthia Eagan, an information technology specialist residing in Windsor, Ontario who works in the Detroit Public Library system. Cynthia contacted the Project after reading a local media article about the study in July 2012 and graciously offered her expertise and assistance on a voluntary basis. After a series of discussions, we decided that she could utilize her considerable experience with reviewing the accessibility of information as an information technology specialist to assist us in evaluating a selection of (on-line) procedural guides provided by the courts. Together Cynthia and the Principal Investigator developed a template of questions that she would apply to a Court Guide from each provincial ministry. The questions used for Cynthia’s evaluation were: 1. Does the material use accessible and easily understood language? 2. Does the material avoid technical and legal jargon? 3. Is the use of language and terms consistent throughout the guide? 4. Do there seem to be any important unanswered questions? 5. Is there a reference point for further questions? 6. What is the material’s “reading level”? [i.e., where does it lie on the Flesch-Kincaird reading scale? Is it properly accessible by all LIPs?] 7. What is the experience of navigating amongst URL’s cited in order to complete the form?

Extracts from page 113 – 127 Part 5: 1

Preliminary Recommendations

Court Forms

Study Findings While on-line court forms appear to offer the prospect of enhanced access to justice, many forms are complex and difficult to complete . . . The most common complaints invlude difficulty knowing which form(s) to use; apparently inconsistent information from court staff/judges; difficulty with the language used on forms; and the consequences of mistakes invluding adjournments and more waster time and stress. These widespread difficulties result in frustration for SRLs and additional burdens on court personnel, registry staff and judges. ... Preliminary Recommendations 1(a) 70

‘Best practice’ standards are needed that recognize the nature and scale of SRL problems with comprehending and completing court forms. Best practice standards should reflect systemic

problems . . . and include: reducing the multiplicity of forms; simplifying language used on forms which is sometimes at a very high . . . reading level and frequently includes legal terminology that SRLs do not understand; ensure that information (and vocabulary) is consistent. Where forms are provided on-line, these should also follow the best practice standards adopted for online resources. . . 1(b)

It is not helpful for SRLs who cannot afford to pay for legal counsel to be constantly faced with admonition on each court form (and sometimes on each page of each form) that they ‘should’ retain legal counsel. While this advice is important, there may be more sensitive and effective ways to bring it to the attention of SRLs.

1(c)

Complementary court guides for court forms and procedures should adopt the same standards. Where guides are provided on-line, these should also follow the best practice standards adopted for on-line resources . . .

1(d)

Individuals (laypersons from a range of educational backgrounds) who have acted as SRLs should be included in planning and reviewing materials and formats in order to develop and to achieve best practice standards.

1(e)

The consequence of improperly completed forms is often severe for SRLs including delays in hearings and their access to a decision. A system for reviewing court forms and documentation prior to submission would save a great deal of judicial and administrative time and ensure that when SRLs take time away from their employment and other responsibilities to attend court, they are not adjourned because of deficiencies with their paperwork. Providing a ‘form checker’ to SRLs would require some resources but would probably be more cost-efficient than allowing unchecked paperwork to go forward.

2

On-line Resources

Study Findings . . . New initiatives in programming and support for SRLs in both Canada and the United States are largely based on the premise that access to the internet can promote access to justice for SRLs. While many of these initiatives are in relatively early stages of development, this study suggests there are significant limitations and deficiencies to this material. SRLs who anticipated that the proliferation of on-line resources would enable them to represent themselves successfully became disillusioned and disappointed once they began to try to work with what is presently available on-line. In particular,, they identified the following weaknesses: an emphasis on substantive legal information and an absence of information on practical tasks like filing or serving, advice on negotiation or a strategy for talking to the other side, presentation techniques, or even legal procedure; often directed them to other sites (sometimes with broken links) with no means of differentiating which is the most ‘legitimate’. On-line resources often required some level of understanding and knowledge in order to be able to make best use of them. The study data shows that no matter how complete, comprehensive and user-friendly . . . on-line resources are insufficient to meet SRL needs to face-to-face orientation, education and other support. Enhanced on-line technologies can be an important component of SRL programming . . . but cannot provide a complete service.

71

Preliminary Recommendations 2(a)

Continued development of on-line materials for SRLs (by courts and other service providers) needs to take into account the considerable difficulties faced by many sRLs in navigating and utilizing existing resources. In order to address these difficulties, ‘best practice’ standards should be developed to include: eliminating legal jargon, ensuring consistency, enhancing the procedural ‘know how’ aspect of on-line resources (presently focused primarily on substance), consolidating information as much as possible to avoid duplication and navigation among multiple databases, maintaining active links, and ensuring an appropriate reading level to enable accessibility for SRLs with a range of levels of education.

2(b)

Individuals (from a range of educational backgrounds) who have acted as SRLs should be included in planning and reviewing materials, formats and the development of best practice standards.

2(c)

Questions and answers (including, for example, both a ‘decision-tree’ style to direct users to the correct procedures/forms and ‘FAQs’) are essential to assisting SRLs. Development of FAQs . . . for websites is another obvious way in which those who have had their own SRL experience could assist in the development of better resources for others.

2(d)

Websites could play a large role in directing SRLs to the appropriate resources available in their community (mediation services, legal advice and legal information services).

2(e)

There is the potential for greater interactivity in on-line platforms, as well as links to personal support via chat and phone. This would enhance the accessibility of on-line material and while not equal to face-to-face contact could help to personalize the experience and convey the sense that this material is fashioned for SRLs, rather than treating them as ‘intruders’ into the world of legal rules of procedures.

2(f )

There is a similar potential for SRLs to support and even mentor one another using on-line platforms. . .

2(g)

Technical support and maintenance (eg maintaining live links, updating) for on-line resources is also lacking and requires investment and enhancement.

3.

Access to Legal Information

Study Findings: It is clear that many SRLs are eager to access further and better sources of legal information . . . SRLs in this study were often seeking ‘guidance’ rather than ‘direction’. . . The most common source of legal information for SRLs are court staff, primarily those working at the registry counters . . . The distinction between legal information/legal advice which lies at the hear of the job descriptions of staff working on the court counters and in information services is consistently complained about by both SRLs and staff, as at best unclear and at worst practically unworkable. The present situation places an unfair burden on court staff who are required to make constant determinations of how much information they can provide to frustrated and even angry SRLs. This leads to inconsistent applications and creates a barrier between SRLs and certain basic information that may be construed as ‘legal advice’. 72

Court and agency staff providing legal information to SRLs described an almost identical set of frustrations and challenges to the SRL sample from their own perspective. They also accurately identified the primary frustrations and challenges of the SRLs. Court and agency staff are working under enormous pressure dealing with the growing SRL population and constantly changing court forms and procedures. These are very stressful jobs, for which they are poorly trained and remunerated. Preliminary recommendations: 3(b)

The conventional distinction between legal information and legal advice requires urgent re-examination. It should be possible to achieve the assumed objective – constraining the ‘unauthorised practice of law’ – in a more consumer-friendly and feasible way. In addition it may be important to revisit exactly what this constraint should mean in the new context of widespread representation without agents (for example discussing court procedures – or predicting what a judge would say?). Court staff need more and clearer guidelines to help them to determine, consistently and fairly, what they may and may not provide as information and in response to SRL questions.

3(c)

Court staff – whether working on the counter, as court clerks, or in general or legal information services – require basic training that prepares them to deal with members of the public on a regular basis, including dealing with distressed and emotional people.

3(d) Regular training updates – whether on court forms or procedural changes – should be built into staff development budgets, to avoid staff being faced with forms and questions with which they are unfamiliar/cannot answer. This type of substantive and procedural updating can be offered on-line using a suitable web-based learning platform. 3(e)

Court staff should have access to support services . . . offering counselling and stress management programs.

3(f )

Each courthouse should examine its present security systems (both inside the courtrooms and also at the counters) to ensure that staff can feel secure in the event of a disruptive person causing a disturbance.

4.

Other support & resources for SRLs

Study findings: . . . Improving the experience for SRLs by developing low cost support services for them has the potential for improving the efficiency and enhancing the morale of the entire justice system. SRLs particularly identified the need for orientation and education (aside from legal training) to enable them to better anticipate and plan for what is involved in self-representation. . . . it is clear that many SRLs are looking for different forms for educational workshops to prepare them for the SRL experience. In particular, they are asking for practical tools and skills that they are can apply. SRLs also described a need for one-on-one assistance in the form of ‘coaching’ (eg document review, answering questions) which support them to handle their own case but also provide checks and moral support. For many SRLs who wish to remain in control of their own case, coaching would be an important resource. A significant number of SRLs say that they were never offered mediation, and/or do not know what it 73

is. This is a clear gap that needs to be urgently addressed (for example in both educational workshops and better publicity). Some SRLs were nervous about participating in mediation, especially where there was a lawyer representing the other side. Some SRLs who wished to try to resolve their case expressed frustration that the Bench would not exercise greater pressure on a recalcitrant opposing side to come to mediation. At present many SRLs bring friends and/or family members with them to the courthouse for moral support, especially on appearance days. This is a reflection of the need expressed by many SRL respondents for some types of protection against what many experience as a lack of compassion and kindness in the system, especially from some judges. However there is a great deal of confusion and inconsistency surrounding the role of friends or supporters of SRLs, as well as the potential for an unrepresented person to bring a McKenzie friend into the courtroom. This lack of clarity and wide exercise of discretion by some judges is creating resentment and confusion. Finally, may SRLs do not have access to the types of office facilities that they require in order to represent themselves including printing services, photocopying facilities and even computers. Some services are presently provided by counter staff (informally) or overburdened court-based programming. Preliminary recommendations: 4(a) Educational workshops If educational workshops are to be attractive to SRLs they should focus on offering practical skills and information, offered by instructors who can provide skills-based focus, with opportunity for interactivity and asking questions, in group sizes that permit this. ... An SRL orientation workshop should be offered in every courthouse (perhaps less frequently for smaller courthouses) for all individuals filing without representation . . . An orientation workshop should be framed less as a legal information seminar and more as an orientation to what lies ahead, and might be best offered by non-lawyers . . . SRLS need to be better informed about the many challenges they will face, including the amount of time required to complete the necessary preparation, the potential impact on their work commitments, the emotional toll of self-representation, the potential impact on social relationships, and even mental health consequences, At the same time (and this is a difficult balance) it is very important that SRL orientation is not designed to discourage or deter selfrepresentation – but rather to be clear and concrete about its challenges. Another critical area of SRL education presently lacking is how to progress one’s case towards an acceptable negotiated outcome. SRLs receive little to no information about how to resolve their case and how to talk to the other side about a possible settlement (which may be especially intimidating if the other side is represented by a lawyer.) A workshop or workshops could prepare SRLs to thinking about settlement and how to make effective use of available settlement processes . . . Where a court offers mediation services, this program should consider offering an orientation workshop that offers practical skills and tips to SRLs. SRL education should be the responsibility of the justice ministries and ideally promoted and offered in courthouses. Programming could be provided by outside specialists with input and assistance of court staff. In developing programs and workshops, those who have had the experience of being a SRL should be consulted. 74

4(b) Coaching Rather than focusing on legal issues and procedures, coaching could be offered by specialists in (e.g.) communication, negotiation, and presentation skills (all areas that SRLs described as important but often lacking from their experience and expertise). In particular one-to-one coaching for settlement/ preparation for mediation/strategic assessment of resolution options would be extremely valuable . . . 4(c)

Mediation services

It is critical to ensure that local mediation services are clearly signposted both in the courthouse and on the court website, with a toll free number widely posted in the community, Mediation services should consider offering initial orientation and training specifically designed for SRLs SRLS who have had good experiences in mediation should be invited to provide ‘testimonials’ to other SRLs who may be nervous about the idea of using mediation. Where one side is interested in mediation, the Bench should consider using their persuasive powers to encourage the other side to seriously consider this. At a minimum judges should enquire whether SRLs have considered using mediation. 4(d) ‘Office’ services Office services available for use by SRLs should be consolidated in a central [location] in each courthouse. Such services would have to be operated at cost, but [it is] clear that the convenience of such a facility in the courthouse would be significant. This would also relieve pressure on court staff and staff at court-based programs who are currently bearing the brunt of such demands. 4(e) Mentoring and ‘friends’ of SRLS There is a clear need for a ‘buddy’/mentoring system to support SRLs in their emotional as well as their substantive and procedural journey. Each courthouse should develop a clear and consistent protocol for the role of SRL ‘friends’ (that is, informal supporters rather than ‘McKenzie Friends’ . . .) that sets out expectations and responsibilities for appropriate access and behaviour . . . A similar protocol should be established in each courthouse for the use of ‘McKenzie Friends’ to avoid confusion and inconsistency. Each courthouse should also explore the possibility of developing a formal buddy/mentoring scheme utilizing volunteers . . . for SRLs. . . . 4(f) Opening hours Courts should consider some extension of opening hours in order to accommodate the growing number of SRLs who have to take time away from their employment in order to file documents and appear in court. ... 5.

The delivery of legal services to SRLs

Study Findings This study shows clearly (and consistently with other recent studies) that the primary reason for selfrepresentation is financial . . . SRLs are not sating that they do no want lawyers to help them – but that 75

the way in which lawyers are currently offering their services does not fit within their budgets. Some are also saying that they prefer to have more control over the progression of their case and resist the traditional assumption of professional control by their lawyer. ... Respondents frequently questioned the limitations placed on their assistance by para-legals, especially in relation to family matters. ... Finally, many SRLs sought some type of ‘unbundled’ legal services . . .; for example, assistance with document review, writing a letter, or appearing in court. Relatively few were successful in accessing legal services on this basis despite a sustained effort, This was perplexing to many respondents, who could not afford to pay a traditional retainer and envisaged that they could undertake some parts of the necessary work themselves, with assistance. ... Preliminary recommendations 5(a)

The summary advice model

. . . we need to: (i) Re-evaluate the types of advice that must be provided by lawyers, and the potential for other important and needed information and assistance to be offered by para-legals . . . 5(b) Para-legals Policymakers and professional regulators should commit to a re-evaluation of the historical reasons for the restrictions of para-legal services . . . in the light of data in this and other studies on SRL needs. This evaluation should consider what rights-protections require the intervention of a qualified lawyer and how to identify and prioritize those cases in a public legal services model. Such an evaluation should consult SRLs as well as lawyers, court staff and other stakeholders. This evaluation . . . should also consider private para-lgal services. Many of the needs described by SRLs in this study could be met by para-legals at a much more affordable rate than lawyers. Such an evaluation should include urgent reconsideration of the types of assistance that can be lawfully offered by (licensed) para-legals, especially in relation to family matters where the need appears to be greatest. 5(c) ‘Unbundling’ Demand from clients for models of legal service beyond the traditional retained arrangement is becoming deafening . . . 5(d) Legal costs . . . There is an urgent need to train lawyers to provide more complete and transparent information about costs to their clients and before they present them with a bill. . . ... 76

5(f)

Code of Conduct

The widespread complaints of both SRLs and lawyers about the uncertainties and tensions where a SRL faces off against legal counsel will not be dealt with simply by developing more ‘rules’ – but that would be a good place to start. It is important to revisit the Professional Code of Conduct for lawyers . . . on the question of the conduct of lawyers facing a SRL. The Code could provide clear guidance to lawyers and should also entrench a commitment to respectful behaviour by counsel towards SRLs. This does not negate the responsibility on the aprt of SRLs to adhere to appropriate and respectful standards of behaviour in court and in dealings with counsel (as well as judges and other court staff ) but the framework of a Professional Code is an important step in these discussions. 5(g) Legal education Prospective lawyers need to be exposed to the realities of the SRL phenomenon. The law schools should urgently consider developing courses that as well as providing up-to-date information about the influx of SRLs into family and civil courts, also take on the challenge of teaching law students skills that are important for dealing with a SRL on the other side. . . There may also be a role for law school(s) to take on some of the orientation for SRLs described above at 4(b). 6.

The judicial role

Study findings: The influx of SRLs into the family and civil courts has dramatically altered the judicial role. Judges, especially in family courts, now finding themselves dealing with SRLs as often as with lawyers representing clients. This is a huge sea change that some members of the judiciary are clearly adjusting to better than others, The study data is replete with SRL descriptions of negative experiences with judges, some of which suggest basic incivility and rudeness. There are also some examples of judicial interventions such as providing advice regarding court procedure, coaching on presentation, and progess towards settlement, which attract positive comments from SRLs. Other studies show that judges are concerned about showing ‘favour’ towards SRLs and find themselves in a difficult position when one side is represented by counsel, and the other is not. Most SRLs saw numerous judges during the progress of their case, and many complained that this created inconsistencies and required them to re-establish their credibility with each appearance. . . . Preliminary recommendations: Judicial education 6(a)

Further judicial training to support judges in working with SRLs in a regular basis is urgently needed. This training should include effective communication skills, facilitation skills and stress reduction strategies.

6(b)

Judicial education should be developed with reference to the perspective of SRLs as well as legal actors. Training should be based on dealing with ‘ordinary/majority’ SRLs. . . It is important that such training is not framed from a ‘siege’ mentality but rather considers the needs of the ordinary SRL.

6(c)

Additional training to enable the identification and management of vexatious and disruptive SRLs should also be provided. 77

Judicial appointments 6(d)

The demands of dealing with SRLs, and the relative skills and willingness of the candidate in this respect, should be considered factors in criteria for judicial appointments, and especially to the Family Bench.

Judicial procedures 6(e)



A Code of Conduct for judicial management of SRLs should establish appropriate norms of judicial practice. Such a Code should be based on common problems and difficulties faced on both sides (judges and SRLs; it could also consult court clerks). This is a project that could be taken on by judicial educators and developed through judicial training sessions . . . In the absence of a formal Code, the study data suggests the following recommendations where one side is represented by counsel, and the other is not: 6(e)(i) A judge might consider opening the hearing with a short speech from the Bench welcoming the parties and setting out his or her expectations for the conduct and procedure of the hearing (including explaining and establishing his or her authority over the process in the courtroom). This might include an giving an opportunity to the SRL to ask a question/clear up any misapprehensions about procedure at the outset. Such an opening would need to be time-limited, but with careful planning could be delivered in 5 – 8 minutes. 6(e)(ii) A judge should give serious consideration to allowing the SRL to bring a friend and/ or McKenzie Friend into the courtroom with them . . . 6(e)(iii) A judge should ensure that the SRL understands when s/he is to be asked to speak and should take care not to give the impression that the bench is only interested in what counsel has to say. 6(e)(iv) A judge should ensure that any forthcoming consent order drafted by counsel is sent to the SRL for review before being submitted to the court.

6(f) Single judge case management Progress towards maximising single judge case management (especially for family matters) should be seriously considered in every courthouse. While this has immediate resource implications, single judge case management may save time and money in the long-term and has ben shown to greatly enhance litigant satisfaction. 6(g) SRL courts There is some limited experience with special SRL courts . . . and this is a development that may have promise. Moreover, it allows judges who are willing to work with this population to develop this as a judicial speciality. A related and promising innovation that deserves a full evaluation is the use of a ‘First Appearance Clerk’ . . . who readies family SRLs for their first court appearance.

78

(2) Other Recommendations Extract from Dyson MR, Advances in Open Justice in England and Wales, (Hong Kong) (18 October 2013) 29.

Finally, I want to turn to wider issues relating to the Internet. I want however to make a preliminary point. Traditionally open justice has been conceived in terms of ready public access and the ability to scrutinise what goes on in the courts. The justice which is to be open is litigation and trial-centric. As anyone who has been involved in developments over the last thirty years or so is aware justice goes beyond the courtroom. Professor Zander put the point, in a related context, in this way,



‘The phrase “Access to Justice” has become a term of art signifying the arrangements made by the state to ensure that the public at large and especially those who are indigent can obtain the benefits available through the use of law and the legal system.’ 11



For access to justice read open justice. It goes beyond the courtroom. It is focused on securing the benefits of the use of law, as well as the legal system, for all members of society. In this sense open justice requires us to ensure that the law is genuinely accessible so that it can play its properly normative role.

30.

If we widen out open justice in this way, it means we have to take a number of steps. We have to, for instance, consider how we simplify the law, and at the very least ensure that new laws are well-drafted and readily accessible. As Lord Woolf noted in his now rightly famous Access to Justice reports, this rendered ‘the court system and its procedures . . . (all) too often inaccessible and incomprehensible to ordinary people.’ 12 Interestingly the government is currently looking at how to simplify law, it having noted that



‘the digital age has made it easier for people to find the law of the land; but [that] once they have found it, they may be baffled. The law is regarded by its users as intricate and intimidating.’ 13



Law in certain circumstances may have to be intricate. It should not seek to be intimidating in the manner in which it is presented. It should always strive to be as simple, clear and straightforward as possible. In particular it should be drafted with the user in mind, and in an open society the real user is the public.

31.

32.

It is to be hoped that something positive comes of this latest initiative to simplify the law. Irrespective of what it produces we need to take advantage of the benefits the Internet provides for rendering law more accessible. In recent years through, for instance, the creation of the national legislative database – legislation.gov.uk – on the Internet that has occurred. The database provides access to statute law14. It is however fairly static, in that it simply consists of the legislation and explanatory memoranda. Given the growth in hypertext linking, and the benefits of what some call Web 2.0, we should be taking a close look at how we can improve that database. It would not, for instance, seem to take much to enable links to be embedded into the database between statutory provisions and

11 M. Zander, The State of Justice, Sweet & Maxwell (2000) at 6. 12 H. Woolf, Interim Report to the Lord Chancellor on the Civil Justice System in England & Wales, (HMSO) (1995) at 119. 13 When Law becomes too complex, research and analysis (Cabinet Office & Office of Parliamentary Counsel), foreword 14 http://www.legislation.gov.uk

79

relevant judgments, which in turn could be readily accessible on Bailli; the charitable body that is the British and Irish equivalent of HKLII – the Hong Kong Legal Information Institute15. It would equally seem to be, on the face of it and to someone who cannot and would not claim to be a tech expert, relatively straightforward to then permit further links to be added to the statutory provision and/or judgment, which would take you to commentary, explanatory notes provided by Wikis or other open source sites. A start has already been made in this direction as Bailii has entered into an agreement with the Official Law Reports to link their two services together. The wider point though is that we have the material to provide a firm basis for readily accessible public legal education via the Internet, which should be thinking creatively how to maximise its utilisation. 33.

A legally literate society is one that could help citizens avoid disputes. Greater legal literacy would inform individuals of their rights and obligations. It could consequently help to minimise the incidence of legal disputes as it could help to built a culture were individuals abide by those obligations. Where litigation becomes necessary or otherwise unavoidable greater legal literacy could usefully help individuals assess to a greater degree than at present whether or not they have a claim and whether it has merit. The latter is, of course, not an easy question, but if due to increased austerity there is a continued decline in legal assistance for individuals legal literacy will become all the more important. Again, the Internet could be harnessed here, and it is something that I hope will be looked at closely in the near future.

34.

Let me explain where I think what I think we could usefully look at in this area. It is an idea that I admit to borrowing from Roger Smith, the former director of Justice who, as far as I understand it, first suggested the idea last year. He suggested that we use the Internet to create a legal version of NHS Direct – A Legal Direct. This would, as he explained it, be an Internet-based legal diagnostic service. It could operate on a number of levels.16

35.

First, it could provide advice on the nature of a variety of substantive legal issues. It could provide clear, straightforward guides outlining court procedure and how to present cases in court. Secondly, it could provide interactive advice, either over the phone or over the Internet. Such advice could help an individual consider their dispute in the relevant legal framework. It could help an individual consider the merits of their claim.

36.

Thirdly, it could provide online access to all the relevant court forms and where, necessary, assistance in filling them out. Assistance could be in the form of embedded web-links to simple guidance on each section of the forms. (In saying this I am sure that the properly web-savvy would be able to come up with far more innovative ways in which such assistance could be given.) Such an innovation could also prove a spur to a thorough redesign of our court forms, which I regret to say were described in a recent review, commissioned by the Civil Justice Council and carried by Advicenow by an expert asked to review them as ‘the worst set of public documents I’ve ever seen.’ The report goes on to note than one particular form had, in the words of an advice worker ‘become impossible to complete for the litigant in person - and for us. ’17 In a world where there will be more litigants-in-person such a situation cannot continue. The Civil Justice Council is an advisory body, which as Master of the Rolls I chair. It is responsible for keeping the civil justice system under review and making recommendations to ensure, amongst other things, that it remains fair and accessible. I return to it in a moment.

15 http://www.hklii.hk/eng/ 16 Smith, After the Act – What future for Legal Aid (Annual Tom Sargant Memorial Lecture 2012) at 13 . 17 See http://www.lawforlife.org.uk/ple-news/good-information-saves-stress-and-money,10262,FP.html

80

37.

Fourthly, where necessary a Legal Direct could provide a basic means of asking specific questions, both on substantive law, procedure and regarding court forms that could be answered via email, via instant messaging or internet-based videolink. Access to this, and basic advice on a Legal Direct website, is going to be particularly important not just due to a reduction in the availability of free legal advice centres but also due to reductions in court staff and the availability of counter services in court buildings across the country, which have occurred as a consequence of the austere times we live in. Finally, it could then provide a gateway to issuing or filing the court form, paying the issue fee or applying for a fee exemption. A Legal Direct could be a cost-effective, to borrow the phrase, a one-stop-shop for litigants. A small proportion of court fees could fund it.

38.

At the moment we have only taken small steps to harness the Internet into service to promote open justice. We use it, as I mentioned earlier, as a means to communicate background information about the judiciary, to provide judgments and judgment summaries. As such we harness it to secure open justice in the traditional sense. We can I think utilise it to go wider than that; to render justice truly open in the wider sense I have outlined here as well as in ways that real technological experts can imagine. With that in mind it is my hope that in the near future the Civil Justice Council will, with suitable experts, start to look further into the ideas I have only outlined here and see if and more importantly how we can use technology to promote open and accessible justice.

Extract from Sorabji, Tinkler v Elliott: Promptly setting aside a judgment given in a party’s absence (2013)32 CJQ (1) 9, 13 It is also important as it provides an illustration of how the court will have to approach litigation in an environment where, as is presently assumed, more litigants will act in person. Sharp J’s approach to the facts surrounding Mr Elliott’s failure to make the stay application for almost eighteen months after the 15 March 2010 order was one which tipped appropriate sensitivity to a litigant-in-person into inappropriate leniency. This approach is understandable given Sharp J’s finding that Mr Elliott had a reasonable prospect of succeeding at trial. It was however inappropriate for two fundamental reasons. First, it undermined the public interest in finality of litigation by enabling a judgment reached in the absence of one of the parties to be reopened after such a significant period of time, as well as after permission to appeal from the decision had been refused as was the case here. Secondly, it undermined a proper approach to equality of arms between the parties. It is not credible to assume that a plea of ignorance or a lack of proper understanding on the part of a party who had instructed lawyers would have garnered any sympathy from the court. On what basis then should a litigant-in-person be granted a more lenient approach? If too lenient – or in the words of Maurice Kay VP ‘excessively indulgent’ – approach is taken to litigants-in-person the courts run the risk of institutionalising an approach which places other litigants at a procedural disadvantage: it opens the door to a two-tier approach to rule-compliance. This is not to say though that the courts should not take steps to mitigate effectively problems such as that which Mr Elliot relied on in the present case. Just as in Maltez v Lewis (The Times, 4 May 1999 (ChD)) the court can should use its case management powers, and require represented litigants in the furtherance of their duty to further the overriding objective, to take steps to equalise procedural imbalances such as the one which arose in the case. In this case Mr Elliott was not provided with a note of hearing of 15 March 2010 immediately after the hearing. If he had he would have been aware of HHJ Tetlow’s comment during the hearing that he could have applied to set aside the decision made in his absence. He was not, and an opportunity was lost. In situations such as the present any order made in the absence of a litigant-in-person could, for instance, be rendered conditional on the provision of a 81

detailed note of the hearing with the order, such note highlighting the possibility of challenging the order under CPR 39.3(3) or by way of appeal under CPR 52. What is clear however is that as the numbers of litigants-in-person increase the court will have to take a more active, and creative, approach to ensuring that its case management powers are used to ensure that such litigants are aware of the choices they have in the conduct of litigation. It will have to do so to render equality of arms meaningful, and to give proper effect to the overriding objective more widely. Equally what is also clear is that the Civil Procedure Rule Committee may well have to undertake a review of the CPR to ensure that it contains suitable provision, through for instance a dedicated rule which makes provision for specific modifications to the rules where one or more parties to proceedings are litigants-in-person, to equalise appropriately any procedural imbalance or inequality of arms which might exist in particular proceedings between represented and unrepresented litigants.

(3) Practical steps to assist LIPs Extract from Handling Cases Involving Self-Represented Litigants: A benchguide for Judicial Officers (Judicial Council of California Administrative Office of the Courts) (January 2007), pp 9-1 - 9-9 http://www.courts.ca.gov/documents/benchguide_self_rep_litigants.pdf

I. Communication Challenges With Self-Represented Litigants Under the time pressure and stress of heavy and intense calendars, judges must determine how they can best perform their fact-finding and decision-making functions when the involved parties are not legally trained or familiar with courtroom culture. Judges have to decide how to make sure that parties who do not have attorneys as intermediaries nonetheless understand and comply with the court’s orders and rulings. How can a judge make sure that justice is not more difficult to attain for selfrepresented litigants than for those with counsel? A judge’s communication skills—something that everyone can improve—will help determine success in this endeavor. A judge’s communication choices will influence not only the amount and quality of the information successfully conveyed in the courtroom (both information given and information received) but also the likelihood of compliance with court orders and, ultimately, both the actual and perceived fairness of the court proceedings. Good communication also involves being aware of those persons in the courtroom who are waiting for their cases to be heard. Through “teachable moments” the bench officer can draw the audience’s attention to the cases being heard, increasing their comprehension of the process and the ability of persons in the audience to work within the process when their own cases are called. Verbal communication refers to the words used, either written or spoken. Nonverbal communication is everything communicated except the words. It includes vocal elements—how something is said— as well as what is commonly called “body language.” Listening, of course, is another basic element of communication, one that usually combines both verbal and nonverbal communication. Communication between the judge and self-represented litigants will necessarily involve the content of actual words spoken or written, how those words are conveyed, and listening or reading skills. Word 82

content can be general or specialized (e.g., “legalese”), formal or informal, and high- or low-gradelevel equivalent, and the context within which words are conveyed can increase or decrease the likelihood of their comprehension. Nonverbal communication can be even more significant than verbal communication, and listening may be the most used but least taught communication skill.

II. Word Content, Formality, and Overall Language Level A. The Importance of Understandable Terms and Definitions In all cases, especially those involving self-represented litigants, it is important to try to make sure that the information and ideas conveyed are understood by listeners, whether those listeners have a law degree or not. Consider the terms used. Obviously, judges must be able to use and understand legal vocabulary, but they do not always have to use it. Using the specialized language of a profession can be a good shortcut if everyone understands it, but it is not a good shortcut if the listener does not understand it. When there is no alternative to the use of a specific legal term and there is a possibility that the parties may not understand it, it is helpful to briefly explain the term. It is not necessary to sound erudite in order to sound professional and to have the record hold up on review. On the contrary, adapting to the listener is a hallmark of an effective communicator in any field. And it is essential in dealing with self represented litigants. Most professionals are not aware of how specialized their language is. When professionals think back to law school or to any time that they were introduced to a new area of law, some terms that might have seemed incomprehensible at first are probably now second nature. Like most professionals, judges tend to think in the “terms of art” of their profession, some to the point where they cannot “translate” legal terms except by using more of them. Here are a few commonly used terms and their possible nontechnical equivalents: 1. alleged—claimed 2. appellant—a person who asks a higher court to reverse (or change) the findings of a lower court 3. bears a significant resemblance to—is like 4. in compliance with—comply, follow 5. the court—the judge 6. defendant—the person who is accused or sued 7. effectuate—cause 8. entitlement—having rights to particular benefits 9. evidence—what is used as proof to establish facts, including testimony from the parties, testimony from witnesses, or exhibits (documents or other objects) 10. exhibit—documents or other objects produced in court as evidence (proof ) 11. hearsay—the report of another person’s words; a statement, either oral or written, by a person who is not in court as a witness 12. jurisdiction—the right to decide a case, the official power to make legal decisions and judgments about particular cases 13. legal elements—the components or factors that need to be proved legally 14. litigant—a person involved in a lawsuit 15. make contact with—see, meet, talk to 16. moving party—the person who asked the court to make a decision 17. obtain relief—to receive a court award of damages or an order requiring the defendant to do or not do something 18. the parties—the sides 83

19. 20. 21. 22. 23. 24. 25.

petitioner—the person who asked the court to make a decision plaintiff—the person who brings a case against another in a court of law the proceeding—the action taken in court, what’s happening in court prove the elements—demonstrate the truth or the existence of the necessary components provisions of law—law pursuant to—under respondent—the defendant in a lawsuit, someone who has to respond to or answer the claims of a person who asked the court to make a ruling 26. rules of evidence—the rules for what is considered evidence or proof in a court of law, and how that evidence must be presented 27. sufficient number of—enough 28. under oath—sworn to tell the truth 29. weight—importance Many judges find it useful to think through common questions to ask them in a way to make it more likely to get better information. Does the matter stand submitted? - Do you have anything else to say before I make my ruling? Did you cause to be filed? - Did you file? Do you want a continuance? - Do you want to have this hearing at a later date? B. Formal Versus Informal Speech To communicate better with self-represented litigants, many judges find it helpful to use practices common to informal spoken language even in the more formal environment of the court. 1. 2. 3. 4. 5. 6.

Less formal language includes the use of the following: Contractions—“it’s,” not “it is”; Shorter sentences; First and second person—“I,” “we,” and “you,” not third person (e.g., “one”); Active voice—“You need to understand,” not passive (“It should be understood”); and Informal connectors to open a sentence—“And,” “Now,” “Then,” “Because,” not “Additionally,” “At this point in time,” “Subsequently,” “In light of the fact that.”

C. Language Level as a Barrier, a Diagnostic Tool, and a Solution Judges should be aware of the level, or grade equivalent of language, and adapt it so that it is accessible to listeners, without being condescending. Most commonly used software programs have measures for assessing the grade level of a document. Measures such as the Flesch-Kincaid Grade Level Score, which is included as a tool in Word and WordPerfect, include the word length (how many letters), sentence length (how many words), sentences per paragraph, and use of the passive voice. Using these tools can be very helpful. D. Value of Written Materials Some information is best provided in written form. When information is complex or lengthy, a handout—ideally with oral summaries or a question-and-answer session—reduces pressure on the listeners and makes it more likely they will both receive and process the information. Some written material is best provided before the court proceeding (e.g., by the clerk, through Web sites or self-help centers), which will greatly increase the likelihood that both sides will be better prepared. By being in writing, it also allows for multilingual translation and gives litigants the opportunity to obtain help to understand the materials. Some information is important enough to be conveyed in both written and spoken form.

84

E. Recognizing the Literacy Barrier However, judges must always remember that as a practical matter, information given in written form is inaccessible to many of the self-represented. It is estimated that over 2 million native English speakers in California are functionally illiterate, which is defined as being unable to read, write, and communicate in English at a level necessary to function on the job and in society. The Correctional Education Association estimates that 65 percent of adult prisoners are functionally illiterate. In Judging for the 21st Century: A Problem-Solving Approach, Justice Paul Bentley (Ontario Court of Justice, Ottawa, Canada) has written that judges must learn to recognize and read the signs of low literacy. People may try to hide literacy problems by: • Saying they cannot read a document because they forgot to bring reading glasses; • Claiming to have lost, discarded, forgotten to bring, or not to have had time to read documents; • Asking to take home forms to “read later”; • Claiming to have a hurt arm and are therefore unable to write; • Glancing quickly at a document and then changing the subject, or becoming traumatized, quiet, or uncommunicative when faced with a document; • Hesitating when asked to read a document and/or reading it excessively slowly; or • Appearing to read a document very quickly, although they are unable to summarize its contents.” Possible markers of low literacy include the following: 1. A person who has not completed high school or has difficulty speaking English; 2. A person who has filled in a form with the wrong information or has made many spelling and grammatical errors; 3. A person who claims to go to legal aid every day, but states that he or she doesn’t have time to fill in the relevant forms; 4. A person who seems not to relate to or understand questions about particular times, dates, and places; 5. A person whose writing and speaking styles don’t match; or 6. A pre-sentence report that indicates that an individual left school at a young age or before completing grade 10, or that chronicles a history of unemployment or refusal of job training, promotion, or reassignment. Persons who have limited literacy skills may attempt to cope with feelings of fear, embarrassment, or inadequacy by behaving in ways that can appear flippant, dishonest, indifferent, uncooperative, belligerent, defensive, evasive, indecisive, frustrated, or angry. These emotional markers of low literacy may appear on the surface to be markers of a “bad attitude.” F. Overcoming the Literacy Barrier 1. To address low literacy in the courtroom, judges can do the following: 2. Be aware of their own biases relating to low literacy – remember – low literacy does not equal low intelligence. 3. Educate themselves about low literacy in their community and in the courtroom; 4. Make it easier for people to understand by a. Slowing down, b. Doing as much orally as possible, c. Speaking clearly and repeating important information, d. Supplementing oral information with a written note that the person can mull over in private or have someone read later, and e. Previewing or reading aloud documents in the courtroom; 5. Keep literacy in mind when sentencing; consider literacy training as part of rehabilitation; keep in mind that most rehabilitative programs (job skills training, anger management, substance abuse, spousal abuse, etc.) are literacy based; or 85

a. Use plain language instead of “legalese,” b. Use short sentences and clear language, c. Use words consistently, d. Use the active voice, and e. Avoid strings of infinitives (“authorize and empower”).

III. Increasing Listener Comprehension Various techniques have been shown to increase a listener’s comprehension of verbal information. A. Setting Ground Rules It is far easier for people to follow the rules when they know what they are. For example, courtroom protocol includes wearing appropriate clothing, standing when the judge enters the courtroom, not interrupting, and so forth. These ground rules may be available in written form at different steps in the process such as at the clerk’s office, self-help centers, or legal services offices. They can also be conveyed by a court clerk, self-help center staff, or bailiff. Procedural examples include how to state objections and how to present different types of evidence. B. Providing a Mental Map It is helpful to give court participants a “mental map” of what’s ahead—what will take place. After each major stage, judges should let them know where they are in the process and what comes next. For example, the following statement could be used: “The first thing I need to find out is whether this court has jurisdiction—that is, the court’s power to decide this case. Then I need to find out whether the financial situation of the parent who does not have custody has changed, and if it has, I need to decide what change in monthly support would be appropriate.” Some judges use visual aids to supplement understanding such as [a] PowerPoint presentation . . . C. Using Repetition Given that this is often new information to self-represented litigants, it can be helpful to repeat important information. As mentioned above, judges will want to consider having important information in both written and spoken form. It is helpful if the same information is also conveyed to litigants at all steps in the process so that the clerks, self-help center staff, and court are providing consistent information to litigants. D. Using Paraphrasing It is often productive to ask court participants to paraphrase important information out loud in their own words to check their understanding. This will also increase retention. This example combines explanation and paraphrasing: “You are required to sign a piece of paper promising the court to do certain things. If you do not keep your promise, the consequences are . . . Are you clear what you need to do? What is that?” E. Asking Questions to Clarify Comprehension Frequently ask if court participants have questions, and PAUSE—for at least 5 seconds for fairly basic questions and at least 8–10 seconds for more complex ones. Make sure that participants understand that it’s okay to have questions. 1.

Count to yourself if necessary to make sure the pause is long enough to allow listeners to process your question and formulate their own.

2.

Use nonverbal behaviors to show that you are open to questions. Include some of the following: establish eye contact, pause, sit up straight or lean forward slightly, tilt your head a little to one side, use a nonthreatening vocal tone, gesture with open hands.

86

3.

Watch the listener’s nonverbal cues to see if he or she has questions but is hesitant to ask them. This is especially important for people who speak English as a second language or others who might be confused or intimidated by the surroundings and the process.

4.

Answer likely questions even if your listeners don’t ask them, if you think the information is important. “A question people often have is . . .”

Extract from A Guide to Bringing and Defending a Small Claim (Civil Justice Council) (April 2013), page 27 Guidance notes – preparation for a small claim hearing 1.

Ensure that you make a note of the date and time of your hearing as soon as you receive a notice from the court telling you when your claim will be heard. Make sure you tell any witnesses as soon as possible too.

2.

If you are the claimant please ensure that you pay the hearing fee by the date specified. Failure to do so will lead to your claim being struck out.

3.

Even if you have already filed some items with the court prepare copies of all documents upon which you intend to rely at court, including any witness statements. These should then be bundled together, a page number inserted in the bottom right-hand corner for each page and sent both to the court and your opponent at least 14 days before the hearing. If you do not do this you will not be able to use them without the judge’s permission.

4.

Consider settlement. If you wish to explore the possibility of agreement contact the Small Claims Mediator or your opponent. Any negotiations are confidential and cannot be referred to at the final hearing. If you do agree terms ensure that the court is notified and that you have a clear agreement in writing. Provided the court is told about the settlement seven days before the hearing your hearing fee will be refunded.

5.

If your witness is unable to attend their statement can be read out but it does not carry as much weight as if they attended. If you have been given permission to rely upon expert evidence, that expert is not usually expected to attend provided their statement has been disclosed in good time.

6.

You may bring a relative or friend with you who, if you wish it, can conduct the case on your behalf. Please ensure that you arrive in good time, the court will try to ensure that you are not kept waiting. If you are unavoidably delayed please ring the court to tell them otherwise the case may go ahead without you.

7.

If you wish to claim any expenses bring with you a note of how much you are claiming. If you wish to claim for loss of earnings bring with you a letter from your employer.

8.

The hearing is relatively informal but you should call the judge Sir or Madam, keep calm and not interrupt your opponent. The judge will ask most of the questions but come prepared to answer them and make a note in advance of what questions you wish to ask 87

your opponent. It may be useful to bring pen and paper. 9.

The hearing can take place in your absence as long as you notify the court and your opponent that you will not be attending at least seven days beforehand. However, it is usually better if you can be present.

10.

Finally the court is concerned to ascertain the facts, apply the law and make a decision. Please do your best at all times during the hearing to assist the judge in that task.

  Extract from The Interim Applications Court of the Queen’s Bench Division of the High Court - A Guide for Litigants in Person (Revised April 2013) (Judicial Office), pages 16, 24 – 25

3. The way to present your documents 16. You will not be turned away or not listened to you if you are forced to present some or all of your documentation in handwritten form unless what you provide is illegible and/or unintelligible. However, you must understand that the judge will have many pages of documentation to read each day and clearly typed and properly spaced material is always preferred. If you can present your documents in this way you have a much better chance that the judge will have understood the point(s) that you wish to make before the application is heard. If you have not been able to do this the Personal Support Unit (‘PSU’) at the RCJ (Room M104) may be able to help with a modest amount of office work in an emergency depending on resources. (For more information about the PSU see section 8 below.) 17. A font-size of not less than 12 should be used, please – and easy-to-read styles such as Times New Roman or Arial should be adopted. The document should be double-spaced. 18. Try to keep your written material as short and concise as you can. The judge will not welcome a large number of pages with a great deal of irrelevant material. If you are preparing a Skeleton Argument concentrate on putting your strongest arguments as you see them in a short series of numbered or sub-paragraphed propositions towards the beginning of the document and then, if you wish, develop them in a little more detail later. However, do try to keep what you have to say brief and to the point. The judge will, if necessary, ask questions to understand your argument more clearly. 19. If you are the applicant, you will have to prepare a paginated bundle10 for the court, for the respondent – and, of course, for yourself. This is to ensure that everyone in court has the same material available. This is dealt with in section 4 below. 20. Although this guidance is addressed to you, the obligations are the same for represented parties and you can be assured that the judge will expect the same approach from them.

...

88

Contrary Ltd v Andrea Blank

Claim Number HQ99X01234

Defendant’s Skeleton Argument for hearing on Friday 23 October 1. My arguments are (i) that the order made on 16 October should be set aside because Contrary Ltd (‘Contrary’) did not disclose to the court everything that should have been disclosed; (ii) even if it was right to make the order then, it should not be extended further because it is unnecessary and unfair. 2. I was employed by Contrary until last Friday, 16 October. On Monday, Contrary’s lawyers sent me a copy of an order the court had made that day saying that I must not work for my new employers, Obliging Ltd (‘Obliging’). This was the first that I knew that Contrary objected to me working for Obliging. 3. I was also sent an application notice saying that Contrary are applying to the Court on 23 October to continue the order until a trial. I am extremely concerned about this and I ask the court not to grant the application. 4. My reasons for objecting to the application are: (a) (b) (c) (d) (e)

I was not given any notice of the original application and so I was unable to present my case to the Court at that time. Had I been able to do so, I would have been able to inform the Court that when I resigned, I told my line manager, Mrs Jones, that I was going to work for Obliging and she said that this was fine. When Contrary made its application, they did not tell the Court about my conversation with Mrs Jones. I could also have said that I was only an analyst. I did not have any contact with Contrary’s clients and had no access to any information which would be useful to a competitor like Obliging. I do not understand why Contrary should be able to stop me working for a competitor for any period. The effect of the Order is very serious: I rely upon my income to support my family and I am unable to look after them even for a short time without having regular earnings.

5. I have prepared a witness statement which explains the relevant facts. 6. In these circumstances, I would ask that the order of 16 October is set aside and that Contrary’s application is refused so that I can start working again with Obliging as soon as the hearing is over. Andrea Blank

 

89

Extract from Interim Applications in the Chancery Division: A Guide for Litigants in Person (Judicial Office) (July 2013), page 10 Preparing a hearing bundle - quick checklist Lodge this by 10.30am on the day before the hearing. Number the pages. Section 1 • Skeleton Argument or position statement (if you wish) • Application Notice • A draft of the order you seek (if you can). • Chronology of main events in the case Section 2 • Any Witness Statement(s) relied upon, and exhibits • Any Witness Statements in response, including exhibits Section 3 • Copies of reported legal cases you want to rely on (or in a separate bundle if there are a number) Useful leaflets/further information: • Thinking of going to court, leaflet 4: http://www.rcjadvice.org.uk/wp-content/ uploads/2012/12/leaflet4-51112.pdf • Thinking of going to court, leaflet 5: http://www.rcjadvice.org.uk/wp-content/ uploads/2012/12/leaflet5-51112.pdf • The Chancery Guide: www.justice.gov.uk/courts/rcj-rollsbuilding/chancery-division

 

90

Extract from A Handbook for Litigants in Person, (HHJ Bailey et al) (March 2013), pages 23 – 25 Chapter 6 The Basic Structure of Litigation A. A cause of action B. Issues of law C. Issues of fact Headlines (1) To bring a claim, the Claimant must have a ‘cause of action’ recognised in law. (2) If a Defendant wishes to challenge the Claimant’s claim, he must raise either issues of fact or issues of law or both. Most cases involve only issues of fact. (3) It is essential for you as a litigant to identify the issues of fact in your case so that you can concentrate on what is really important in your case. (4) The court will sometimes direct parties to prepare a list of issues. You should welcome such a direction, because you will then see what your opponent considers to be the issues, and, possibly, the judge may make helpful observations about what appear to be or appear not to be issues in the case. A. A cause of action 6.1 To bring proceedings in a civil court, the claimant must have a claim against the defendant that is recognised as being enforceable in law. To be successful in the proceedings the claimant must have a good ‘cause of action’ against the defendant. The cause of action is the entire set of facts that gives rise to an enforceable claim. 6.2 There are two elements here. First there must be a claim that is recognised as being enforceable in law. English law recognises a wide variety of claims, but not everything which causes injury, loss or annoyance to another will constitute a valid claim. The claimant must satisfy the court that his claim is one which is proper to bring within the recognised principles of the law. 6.3 The second element is the factual basis of the claim. To take two examples. Where a person breaks an agreement he has with another he may have to pay compensation (damages) to that other person (the innocent party). Or where a person who is under a duty to act with due care fails to do so with the result that another person suffers harm, a claim may be made by the victim of the harm. It is for the claimant to establish all the essential facts that go to make up that valid claim. B. Issues of law 6.4 ‘Issue’ in this context means a matter on which the parties disagree. An ‘issue of law’ is where the parties to proceedings have a dispute as to any aspect of the law or its application in relation to their proceedings. Many cases proceed without giving rise to issues of law. Where, for instance, the claimant is a pedestrian who claims that he was crossing the road at a light-controlled junction when he was hit by a car driven by the defendant through a red light, it is most unlikely that an issue of law will arise. The legal claim will be in the tort of negligence, for the law recognises a duty on all drivers to exercise reasonable care to avoid causing damage to anyone else who is using the road at the same time. If a driver goes through a red light and injures a pedestrian who is crossing the road, there is little scope for arguing the legal basis of the claim. The driver may defend the claim on a factual issue, eg the light was, in fact, green so that he was crossing the junction perfectly reasonably when the pedestrian ran out in front of him, but there will be no legal issue. 91

6.5 But the above is a simple example and the law behind any particular claim may not be so straightforward. Before a claimant starts a claim, he needs to satisfy himself that he has a claim recognised in law. A defendant is entitled to challenge that claim either on the basis that it is not a proper claim in law or that it does not apply to the facts of the claim being brought. A defendant challenging the legal basis of the claimant’s claim in either of these ways raises a ‘legal issue’ as to the validity of the claimant’s claim. 6.6 This can be a daunting prospect for some litigants in person. The law can be technical and can sound even more technical than it is. Lawyers, in common with most other professionals, use shorthand phrases that may take some understanding. But for the most part the ‘law’, in the sense of what makes up a valid claim, is not difficult to understand. It is convenient to divide the law into specific areas giving rise to valid claims, the most common being contract, tort, land law, and trusts. Anyone wishing to research whether he has a valid claim will find that most text books will cover defined areas of the law, for the law is too vast an area to be conveniently covered in one volume. Once the correct area of law has been identified, it should be possible to identify the part of that area of the law which covers the facts of any individual case. 6.7 Each valid legal claim may be divided into its ‘elements’. Probably the most common claim brought in the courts is in the tort of negligence. This claim may be divided into three elements, namely:- (1) a duty owed to the claimant by the defendant; (2) a breach of that duty by the defendant; and (3) damage recoverable in law caused to the claimant by that breach. The claimant must establish each of the three elements. The defendant may challenge any or all the elements. He may challenge the duty alleged by the claimant and assert that the law does not recognise that a person in the defendant’s position owes a duty to a person in the claimant’s position. This will, essentially, be an issue of law but the facts on which the issue is decided may be important, so there may be an issue of mixed law and fact. Whether or not a defendant has acted in breach of a duty he owes to the claimant will usually be an issue of fact. But with the third element, that of damage, the law has restrictions on the scope of damage that may be claimed in any particular circumstances. So issues of law may arise in connection with damages. 6.8 It is not possible in this Handbook to cover the law. That has to be found in textbooks. Please see the comments made in paragraph 1.19. C. Issues of fact 6.9 An issue of fact, that is a dispute or disagreement as to the actual facts arising in a claim, is an easy concept to understand. Issues of fact are the very stuff of courtroom dramas. They are the building blocks of any case. What is very important for the litigant, however, is to have clearly in mind those factual issues which are relevant to the determination of the case, and those that are not. A litigant who spends time and effort disputing facts which are not relevant to the decisions which the judge has to make can annoy everyone by wasting time. But, more importantly for him, the litigant who makes a great song and dance about facts which are not relevant to the determination of the case may end up by masking those facts which are helpful to his case. 6.10 Which facts are relevant and which are not will depend on the circumstances of the individual case. The colour of the clothes worn by a claimant pedestrian in a road traffic accident case may have no bearing at all on the defendant’s driving. But if the accident happened at night time and the claimant was wearing very dark clothing, the colour of the claimant’s clothes may become extremely important. Where the driver was planning to go after he had crossed the junction where the accident happened is often quite irrelevant to an assessment of his driving. But it may become highly pertinent if the driver was lost and paying more attention to his general surroundings and less attention to the road ahead than he should have been. Or he may have been late for an appointment. The litigant has to use his good sense as to what is and what is not relevant in his particular case. Furthermore the 92

litigant should always be ready to accept that, as a case proceeds, an issue of fact which seemed very important to him before the trial may turn out to be of little importance, and vice versa. 6.11 It is always important to identify the essential issues of fact before the trial begins. That is the purpose of pleadings (statements of case), see chapter 8. When the pleading stage of the claim is completed, it should be possible to work through the pleadings and identify all essential issues of fact. A good litigator will identify all the essential issues of fact shown on the pleadings so that he can: (1) ensure that he discloses all documents that bear on those issues; (2) consider what witness or documentary evidence he may produce at trial to support his side of the various issues; and (3) deal with each issue thoroughly in his witness statements. 6.12 Judges regularly direct litigants to prepare and file a list of issues. See this as a helpful direction. It will make you think about the issues you are raising. It will also enable you to learn what your opponent considers to be the issues in the case. Because it is helpful to the parties and judge alike, a judge at a Case Management Conference or other interim hearing may consider the list of issues with the parties and possibly make observations which may help you add to or refine your list of issues. If the case management judge in your case does not direct a list of issues, and you would prefer that he did, do not hesitate to ask for such a direction.

Extract from CLIPS - Chancery Bar Litigant in Person Support Scheme18 On 4 December 2013, the Chancery Bar Association, in collaboration with the Bar Pro Bono Unit and the RCJ Advice Bureau, launched the Chancery Bar Litigant in Person Support Scheme (“CLIPS”). CLIPS has the support of the Chancellor and the Judges of the Chancery Division, and is also supported by the Personal Support Unit and LawWorks. It aims to provide “on the day” advice and representation for litigants in person in the Interim Applications Court. The scheme is intended to assist litigants in presenting their cases to the court, while at the same time assisting the Interim Applications Judge to serve the interests of justice. In this way, members of the Association can contribute to the Bar’s efforts to ensure that access to justice is not hampered by an individual’s financial means. Members of the Association with post-pupillage Chancery experience are invited to volunteer to be on duty for a day at a time. The RCJ Advice Bureau may in some cases make papers available to the barrister the day before the hearing, but in most cases the volunteer will simply be available outside Court 10 in the Rolls Building, between 10 and 11 am on the day of the hearing itself, and then on call in chambers until 4.30 pm, in case a litigant requires assistance. The volunteer will provide such advice as is possible in the immediate circumstances, and will be ready (if requested and if content it is professionally appropriate) to appear for the litigant at that day’s hearing. The litigant may also receive non-legal support (for example, from the RCJ Advice Bureau or the Personal Support Unit). Where ongoing assistance is required, the volunteer will refer the litigant to the RCJ Advice Bureau: the volunteer’s own commitment is limited to the day in question. The Committee commends CLIPS to the Association’s members: it is an excellent opportunity to use our expertise to promote access to justice for all.’

18

http://www.chba.org.uk/about-us/the-association/clips-chancery-bar-litigant-in-person-support-scheme. A similar scheme, upon which this one is based, operates in Court 37 – the QBD Interim Applications Court, where pro bono assistance is provided by both solicitors and barristers.

93

 

PART 5 Tracking the growth and impact of LIPs and the efficacy of reforms

94

Part 5: Tracking the growth and impact of LIPs and the efficacy of reforms Introduction Historically, there have been few detailed empirical studies of the justice system’s operation. This is equally true of the extent to which LIPs bring claims. There is an expectation that the number of LIPs has recently and will continue to increase. What actual data there is in this regard is limited; anecdote and reported experiences by lawyers, judges and advice and pro bono services bears this claim out however. Part 5 looks at Genn’s argument that we ought to properly record and study LIP numbers, and queries who is responsible for doing so. Such studies are important for a number of reasons: to assess the resource implications on the justice system; to scrutinise the impact of such reforms, both positive and negative; and then to consider what reforms need to be taken to facilitate effective access to justice for LIPs.

 

95

Tracking the growth and impact of LiPs and the efficacy of reforms Extracts from Genn, Do-it-yourself law: access to justice and the challenge of selfrepresentation C.J.Q. 2013, 32(4), 411 As is the case with so many aspects of the administration of justice, the data collected by HMCTS and MOJ [concerning LIPS] are ill-suited to answering some of the most basic research questions about the functioning of the courts and tribunals system. This historic weakness means that debate proceeds too often on the basis of anecdote, and that policy, formulated within the void of information black holes, is rarely subjected to systematic evaluation. The consequence is that it is difficult to know when a policy might have succeeded; and when it has failed, we are not in a position to learn from policy mistakes. The growing phenomenon of LIPs appears to be following the traditional pattern. Despite repeated media stories about the growth in LIPs, despite the concern expressed by the judiciary, and despite the MOJ’s own pre-LASPO review of data sources and research on LIPs revealing a shocking absence of reliable evidence, it seems that the only data currently being collected and published by HMCTS relate to representation in family proceedings. Even this information is doubtful since the identification of “parties without representation” is based on a single field on the court’s management system (FamilyMan) in which court staff record whether parties have legal representation or not. The MOJ itself accepts that this is not the same as being a “litigant in person”. Material combined from a number of sources suggests that there is already a substantial proportion of unrepresented parties involved in family and civil court proceedings and the signs are that this proportion is increasing. For example, statistics from the Personal Support Unit at the Royal Courts of Justice show year on year increases in the number of LIPs receiving support in the RCJ. In 2012, there was a 37 per cent increase over the previous year in the number of clients assisted nationally and in London alone the PSU dealt with around 4,000 clients. The PSU’s specialist family unit experienced a 35 per cent increase in the number of clients in first quarter of 2011 and in that year the Unit commented that they were “supporting more and more men, many of whom report that they are struggling to keep up maintenance payments, and more and more cases where both sides are without lawyers.” The PSU also provides services to an increasing number of clients at other courts and tribunals in London. The situation seems to be that we have already experienced some growth in the number of LIPs in courts and tribunals and that the implementation of LASPO has led to escalating concern. This apparent growth in LIPs seems to be consistent with developments around the common law world, although we appear to be somewhat behind the curve. The United States, Canada, and Australia have been dealing with the challenge of LIPs for some time, presumably because of constrained or non-availability of legal aid for non-criminal matters, but jurisdictions such as Hong Kong and New Zealand are beginning to face a similar situation. ... Although English research on how LIPs cope with court and tribunal proceedings is rather limited, one or two studies provide insights into the challenges for the litigant, their opponent, and the court. A study of the outcome of appeals in tribunals in 1989 concluded that, controlling for other factors, represented parties were significantly more likely to win their appeal than unrepresented parties. The study concluded that experienced representatives understand the law and complex regulations, they investigate cases, they collect evidence, and they advocate effectively on their client’s behalf. Although 96

unrepresented parties may have a good understanding of their case and concerns, they are not always able to distinguish which issues are legally relevant, which aspects of their factual situation are germane to the legal issues, and what constitutes appropriate evidence. They may have trouble articulating their case, and in maintaining any degree of objectivity. They may be overwhelmed by the procedural and oral demands of the tribunal or courtroom and find it hard to understand the purpose of questions. A later study of the experiences of white, black and minority ethnic tribunal applicants in 2006, found marked differences in applicants’ ability to self-represent during proceedings. The study concluded that the ability of some applicants to present their own case was so limited that “an advocate is not merely helpful, but is necessary to the requirements of procedural fairness.” ... Developing an evidence base Valid and reliable data collection must be a central element in any comprehensive strategy for transforming the way that the justice system accommodates unrepresented parties. This is crucial in order better to understand both access to justice and abuse of process issues and to assess the efficacy of any proposed solutions. Information of different types should be collected systematically and be capable of linkage. We need consistent and practical methods of categorising LIPs. We need information about demographic and other personal characteristics, about the type of case in which they were involved and whether they were bringing or defending the action. We need information about the court or tribunal in which the case was dealt with and the outcome of the case, including for example interlocutory orders, civil restraint orders, and any subsequent appeals and outcomes. Had this information been collected over the past decade we might now be able to quantify the increase, if any, in the volume of LIPs, to describe the characteristics of LIPs in different proceedings, and the extent to which lack of representation appears to be associated with increased length of hearings or prejudice in outcome. We would also be able to give a more coherent account of the volume and nature of persistent or vexatious litigation and to assess the impact of measures to curb abuse of court process.

97

98

99

UCL Faculty of Laws www. ucl.ac.uk/laws Judicial Institute www.ucl.ac.uk/laws/judicial-institute Centre for Access to Justice www.ucl.ac.uk/laws/accesstojustice

100