Recently the number of requests from individuals in need of pro bono assistance seems to have rapidly risen. I hear from colleagues that the situation is similar for other pro bono projects, and there seems to be a general consensus within the sector that when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) comes into force in April next year, things are going to get much worse.
It’s fairly obvious how legal aid firms will be affected: they’ll stop getting paid for a good deal of the work that they are currently doing. It seems likely this will lead to a loss of jobs in the fields of employment, immigration, education, housing and consumer law - to name just a few of the areas that are being removed from scope. There are further fears that these specialisms will not be able to attract newly trained lawyers and swathes of expertise will not be passed on for future generations. But what of the firms that practise outside these areas? Are they safe?
The recent Civil Justice Council (CJC) report on how to improve access to justice for unrepresented litigants acknowledges, in chapter 1, paragraph 1, that LASPO is likely to lead to a ‘substantial increase in those whose access to law is unaided by lawyers’. The Legal Aid Group puts the number of cases that will suddenly be without help at 77,000 in London alone. It could be described as an incoming tidal wave of unrepresented litigants - to what extent do firms without legal aid contracts recognise the impact this might have on them? An efficient court system surely benefits all - it seems to me that the incoming tide threatens to upset the system causing problems for lawyers across all practice areas.
Any case handled by an unrepresented litigant is likely to take longer to reach a final hearing - what with disclosure etc - than one where both parties are represented. I’d also suggest that the hearing itself is likely to take longer than if the statements of case and the evidence have been prepared by a lawyer who is trained to know what is relevant, and - crucially - what is not.
Surely, then, we can anticipate a noticeable increase in delays in the court system once LASPO comes into force? This is the same court system that hears commercial cases of all kinds so if it starts to take over a year (or, longer than it does now) to get a case listed for trial, surely this presents a problem for everyone? Couple this with the drastic cuts to court staffing levels and it begins to paint a bleak picture for the courts in the times ahead.
Additionally, as the tide comes in, the whole system might start to adapt to be accessible to litigants without legal training - could this undermine the need for legal services more generally? The current system was created for lawyers. To properly understand and navigate it, a high level of training and experience is needed. These high standards allow it to run relatively smoothly and with minimal delay. At the moment, judges aren’t responsible for offering legal advice to unrepresented litigants, and if the proper procedure isn’t followed there can be serious consequences. If, however, a large number of non-lawyers suddenly need to access the system, perhaps things will start to change.
Will judges adopt a more advisory role? Will it no longer be fair to use procedures like default judgment or strike out for late filing of documents? And if the system adapts to the pace of the unrepresented litigant, is it possible that commercial clients such as banks and insurance companies will devalue the services their lawyers can provide?
Some might say that we should have a system which is accessible to all, one where judges do all they can to help litigants and where extenuating circumstances are taken into account before imposing sanctions for breaches of procedural rules. But, what about the judge’s independence in the whole process? And what about the additional time it would take to deal with a case if the rules are relaxed. Judges don’t take an impartial non-advisory approach to be difficult and these rules don’t exist just to trip people up. The current system helps to ensure that cases are conducted as fairly, and as swiftly, as possible. But this system relies on highly trained lawyers (who know the rules) representing the interests of both sides. If suddenly the system changes to accommodate the wave of unrepresented litigants, it may well become more accessible, but surely this would come at a cost?
So, rather than this being an issue for legal aid firms and the pro bono sector alone, perhaps it is in the interests of all lawyers to do what they can to limit the number of individuals forced to navigate the system alone.
Lia Moses is a caseworker at LawWorks, a national charity working with solicitors to support, promote and encourage a commitment to pro bono across the profession
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