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The Big Bang may have proffered the public greater choice, but there is a high price to pay
Litigant in person (LIPs) creep has reached the High Court. There are now increasing numbers of litigants with cases of substantial value and complexity who are unable to fund legal representation. Often they do not qualify for public funding and their cases are not suitable for alternative forms of funding.
High Court judges are having to grapple with the difficulties presented by LIPs more regularly and in relation to much higher value claims. So bad has the problem become that the senior judiciary are being offered special training on managing LIPs, and in the county courts a district judge will often see no legal representatives for an entire day. Far from improving the courts’ efficiency, the result is usually longer and more difficult hearings and a greater number of adjournments at a late stage.
In Wright v Michael Wright Supplies Limited and Anor, Sir Alan Ward took the opportunity to express his views on the effect of LIPs on court resources.
“This judgment will make depressing reading,” he said. “It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person.
“What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with LIPs… [including] how to bring order to the chaos which LIPs invariably… manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved.
“It may be saving the Legal Services Commission, which no longer offers legal aid for this kind of litigation, but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals that need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times but… justice will be ill served… by this emasculation of legal aid.”
The Big Bang, therefore, rather than empowering the public by notionally providing consumer choice and power, has, in fact, adversely affected access to justice not just in regard to funding but for others seeking to use the court system to resolve their disputes.
Ward is wrong in one respect, though - that delays caused by LIPs are unquantifiable. As Lord Justice Hughes commented in Wright, “The case is a good example of the way in which efforts to save money on legal representation can often end up costing everyone, and in particular the public more rather than less.”