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Do litigants in person have an unfair advantage?

Date:3 FEB 2017
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It has been very clear for some time that the number of litigants in person (LIPs) appearing before the civil and family courts without legal representation has increased significantly. The catalyst has been the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which took many civil and private law children and family cases out of scope for legal aid in England and Wales from 1 April 2013.

Recent government statistics confirm that in 34% of private law disputes neither party has the benefit of legal representation from either a barrister or a solicitor. This means that many such litigants are not afforded the right to legal advice, understanding or justice. But does this balance itself out elsewhere within the process?

The Court of Appeal in the case of Agarwala v  Agarwala [2016] EWCA Civ 1252 raised fresh concerns about the direct impact of litigants of person on the judiciary. The matter before the court related to appeal arising from a family dispute over an interest in a property and I will trouble the reader no further with the specifics of the case, but more particularly with the Court’s postscript.

Lady Justice King was clearly and rightly frustrated that this litigation had been running almost continuously for 7 years.

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That it had in her words, ‘taken up countless court and judge hours as both parties, incapable of compromise, have bombarded the court with endless applications, such that Ms Jones now tells the court the judge has had to make orders that neither party may make an application without the leave of the court. The refusal of either party to accept any ruling or decision of the court has meant that the court staff and judge have been inundated with emails, which they have had to deal with as best they could, with limited time and even more limited resources. The inevitable consequence has been that matters have been dealt with “on the hoof” on occasion without formal applications or subsequent decisions being converted into formal rulings or orders.’

Lady Justice King conceded that, ‘whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.’

The comments by Lady Justice King give further evidence to what is already known by court users, that the court system is bursting at the seams from the impact of the recent reforms. It simply does not have the financial resources to manage the problem. It should be noted in passing, that many solicitors acting for parties against LIPs suffer the same difficulties. It is frequently and unfairly that the party who can afford solicitors often subsidizes the LIP with the cost in preparing bundles, drafting additional court documents and indeed often replying to a similar ‘torrent of informal, unfocussed emails’. This occurs often when they are the respondent to the proceedings brought by the LIP. The fact is that the case management powers to which the court refers are already in place (the FPR for example), but what is needed is proper and consistent management by the court. It is sadly becoming all too common for LIPs to email directly the courts and judges where solicitors and barristers would never dare. Many LIPs are attending court having not complied with court orders. Often courts shrug their collective shoulders and attempt to plough on with the case. What is imperative is that fairness prevails and to that end that the court rules are complied with by all. Fairness works both ways. Litigants in persons should not by accident or design obtain an unfair advantage at the expense of others by a lack of legal knowledge or understanding. For there to be fairness for those represented and unrepresented it is vital that the court complies with its own rules and observe these comments from Lady Justice King.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing.