The number of litigants in person (LiPs), individuals representing themselves within the justice system, has been steadily increasing over the last decade. This is largely due to the implementation of the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), which cut legal aid funding.
It has always been an option for parties to a legal dispute to deal with the matter personally and not instruct a representative. So while LiPs should have no restriction on their access to the justice system, issues can surface when individuals are compelled to represent themselves specifically due to a lack of funds.
The National Audit Office (NAO) found that the reduced sources of funding as a result of LASPO led to a 22 per cent increase in cases involving children and a 30 per cent increase in all family law cases in which neither party had legal representation. To highlight the impact of LASPO following its implementation in 2013, by the period between January and March 2014, 80 per cent of all family court cases which started included at least one party that did not have legal representation.
The lack of funding options is most prominent in family legal cases given that many were previously supported by legal aid before LASPO. Yet despite limited available data before its implementation, it is widely accepted that the same problem arises in all types of court.
Where individuals act as LiPs there is a risk that it may lead to negative outcomes. Most LiPs are not legal professionals, nor are they expected to be. The courts, representatives and judiciary will rightly allow time to explain proceedings and ensure that the parties are provided an opportunity to engage with the hearing on as much of an equal footing as possible. This involves assistance in advance of court as well as during the course of the hearing. The additional work this creates for judges and staff can make the court process less efficient.
Anecdotal evidence from legal practitioners has estimated that hearings with LiPs take 50 per cent longer than hearings where both parties have legal representation. Moreover, many cases would likely have avoided a court hearing entirely if professional legal advice had been sought. In short, LiPs are less likely to settle cases outside of court, are likely to have more court orders and interventions in their cases, and tend to lack the knowledge and skills required to conduct their cases efficiently and effectively,
The Ministry of Justice (MoJ) has provided experimental statistics on the delays caused by LiPs in its response to a consultation in 2016.
When a vulnerable person is a LiP, these negative outcomes will be exacerbated, not least as their ability to understand the court proceedings may be more limited. As such, increased support is needed from judges and court staff, which again may delay other cases.
Meanwhile funding support by the MoJ for organisations directly assisting LiPs during the pandemic has been limited to less than £1 million.
Legal expenses insurance (LEI) is one important way in which consumers can access legal representation and advice, thereby helping to alleviate pressure on the court system. The value of LEI has been recognised by the Legal Services Board (LSB), which aims to see most households owning a LEI policy in the next ten years to enable them to access a wide range of legal services free at the point of need. The Association of Consumer Support Organisations (ACSO) is supporting the LSB in achieving this and is conducting its own research on LEI and its impact upon access to justice.
LiPs are now a prominent and increasingly expected part of legal proceedings. For the courts to function effectively, additional funding is needed to ensure that consumers are provided with appropriate and accessible options to pursue or defend their claims. Consideration must now be made to long-term solutions in respect of court delays and how best to support LiPs through the claims process. While the MoJ has stated it will increase support for LiPs in the justice system, such support is not yet sufficient.
The MoJ has stated previously that the impact of the number of LiPs within the court system is difficult to measure and that is may be impossible to know whether the intended savings in legal aid reform are being offset by expenditure for LiPs elsewhere. Given the considerable pressure the court system is now under, which has been greatly exacerbated by the impact of the pandemic, it is clear that further research and action on this issue is urgently required.
Author: Duncan Faulkes, secondee at ACSO and trainee solicitor at Lyons Davidson Solicitors.