Dyson: miscarriages of justice likely since LASPO

Topics: Civil justice,Family and children,Legal aid and access to justice

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Master of the rolls Lord Dyson has told MPs that an increase in litigants in person has caused miscarriages of justice.

Dyson told the House of Commons justice committee it would be ‘extraordinary’ if there were not civil cases that would have been won by the litigant in person (LIP) had they been represented by a competent lawyer.

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Self-representation has increased in civil courts in England and Wales since the Legal Aid, Sentencing and Punishment of Offenders Act came into force in April 2013. The committee is currently investigating the effects of the act.

Dyson said government statistics showing hearing times have not increased were likely to be right – but only because litigants were unable to argue their case.

‘Quite often the hearing is indeed shorter than with lawyers,’ he said. ‘That is not because lawyers are there to indulge in spoiling tactics and get into technicalities for the sake of it, but I’m afraid litigants in person are overawed by the experience and just dry up.’

Dyson said the impact of LIPs has been felt most at the case management conference, where they are unable to give clear directions at the early stages of cases.

He added that ‘we would be deluding ourselves’ to think the government’s proposed £2m investment to help litigants in person will make a ‘huge impact’.

He added: ‘It is very difficult – what is a judge to do? Judges try to be as fair as possible and make all allowances possible but ultimately [LIPs] are the only ones that can speak.’

Sir James Munby, president of the Family Division, agreed that the biggest impact was felt in the early stages of cases.

‘Litigants in person are not capable of prepared a bundle of documents which comply with the rules,’ he said.

‘They used to [represent themselves] through choice – now it’s not their choice. It takes time explaining the process and teasing out the issues. In the early stages of family cases the hearings are taking longer.’

But Munby did take a pragmatic approach to the emergence of professional McKenzie friends, saying it was better for individuals to have some representation than none at all.

‘Most McKenzie friends in my experience do add value. They tend to be articulate, understand cases and have a surprisingly good grasp of the law.’

Readers' comments (6)

  • It's their own fault for not have a father as a Stockbroker, Mother a Justice of the Peace, not having gone to the same schools as the Royal Family, Eton College, etc....

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  • The House of Lords Committee appointed to consider and report on the Mental Capacity Act 2005 has now published its report. 2014.
    .
    Key findings: Lord Hardie, Chairman of the Committee said:
    .
    “We were very concerned by what we heard about the safeguards. The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that Parliament intended. Worse still, in some cases the safeguards are being wilfully used to oppress individuals and to force decisions upon them. The Government needs to go back to the drawing board to draft replacement provisions that are easy to understand and implement, and in keeping with the style and ethos of the Mental Capacity Act.”
    .
    In my case 10 Boxes of Lever Arch Files were finally disclosed to me in October 2014 by solicitors, two years after a Court of Protection nominated Judge said that the files be sent to the Court of Protection in the first instance and an appeal filed.
    .
    Ten years after I was certified without a medical by a private psychristist the General Medical Council in 2014 release Court of Protection Medical Certificates. Eight years after a barrister wrote that I had been incapable of legal discussion for over a year the Royal Courts of Justice in 2014 release the barristers report. It appears that the rest of my file is now missing from the Queens Bench Division.
    .
    Leonard Lawrence Pilot
    .
    p.s. Thankfully an unknown person had sent me an entire copy of the Queens Bench Division files before they went missing.

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  • Aside from moaning about the problem, what are these judges doing to change anything? I don't seen any of them resigning in disgust at the policies which have created this situation.

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  • I could also argue that...if I did not find cases ran by a lawyer that would have been won or would have had a more fair outcome if the lawyer had have been a litigant in person, it would be extraordinary.
    I prefer that Family Court Judges do make an effort to discourse with parents directly for a period of time whether they have a lawyer or not. Further I have grave concerns if litigants in person are not allowed to discuss any shortcomings or discrepancies in relation to psychologist or social work type reports as unfortunately those semi-professions are notorious for flaws such as mistakes in data, poor training, lack of diagnosis ability and much much more.
    Further, I suspect that litigants that try to precisely copy lawyers styles may not succeed easily and perhaps are better served by being allowed to use a simpler lingo. Family law affects the heart and soul of the nation. The happiness or misery of your nation will literally determine whether or not many people live and want to live. Given a chance the population will adjust to the new style as evolutionary creatures do. In Family Law much is about dynamics.Personally I find over reliance on case law (which I have rarely bothered with in my whole life) annoying. Family law is about rights but is mainly about fairness to all. I do not like it when matters of serious child abuse or financial neglect do not get discovered because of one person hiding behind a lawyer and I have seen that occur.
    Lawyers who are lamenting a loss of billable hours due to any Family Law upgrades are better served by refreshing their skills in other areas of law, and conserving their energy for that task.
    Good luck to all.........

    Isabel Joy Field

    World.

    Child Advocate. Lawyer

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  • Lord dyson says that LIPs have difficulty in preparing a bundle which comply with the rules. As a LIP myself why are there any rules about presenting a bundle. If I write a letter of complaint about a product it doesn't need to be in a set form. Can't lawyers (including Dyson) understand plain english in whatever form its in? Its just another excuse by lawyers to get a person to lawyer-up

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  • For 18 years I was one of the 30,000 JPs in England ad Wales. We dealt with over 80% of all criminal cases, depriving people of their liberty,deciding civil cases and sometimes sitting with senior judges on appeals. I don't remember once rejecting something simply because a bundle didn't comply with the rules.

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