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.
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.’