Senior judges have launched their most scathing attack yet on the government’s cuts to civil legal aid.
In written evidence responding to the government’s consultation on the first year of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act, the Judicial Executive Board said courts have faced an ‘unprecedented increase’ in numbers of litigants in person (LiPs).
It stated that court systems have yet to be developed to deal with unrepresented litigants, with cases that might never have been brought had a lawyer been involved now being fully contested.
The board is made up of the most senior judges and their criticism will add pressure to the government to find a response to deal with rising numbers of LiPs.
The response said the judiciary’s experience is that the absence of pre-proceedings advice has caused an increase in unmeritorious claims and ‘almost certainly, some meritorious cases never being brought’.
And there is scepticism that the government will see the budget savings that were used to justify swingeing cuts to legal aid in civil cases. ‘Where legal aid has been removed and individuals have become self-represented, the adverse impact upon courts’ administration and efficiency has been considerable,’ said the judges.
‘The apparent saving of cost by a reduction in the legal aid budget needs to be viewed in context: often it simply leads to increased cost elsewhere in the court system as, for example, anecdotally cases take longer.’
Many LiPs are said to have little or no knowledge of their legal rights, how to initiate an application or how processes and procedures work. Others have learning difficulties, or psychological or psychiatric problems.
’Because generally LiPs lack knowledge of the legal system, some tend to be much more demanding of court staff (numerous lengthy telephone calls, more difficult to make contact, extensive, often irrelevant, correspondence), and some wrongly assume administrative staff can give legal advice,’ the response says.
‘The impact of those conditions compounds an already fraught exercise in gaining access to justice.’
Potential litigants who judges believe have seen the most pronounced consequences are tenants; those with debt issues; separated parents with children; those with shared property who have suffered relationship breakdowns; members of the wider family (such as grandparents) in both public and private law children cases; householders; and owners of modest-sized businesses.
The response also notes the ‘very significant impact’ upon the courts in cases where LiPs are unable to afford to commission expert evidence.
In March 2014, the Association of District Judges carried out a survey of its membership particularly focused upon the experts’ reports issue in private law family work. In 62 out of 188 cases (33%), expert evidence was considered necessary.
But in only 19 cases (30.6%) was expert evidence ordered and in just under half of those the burden of payment fell on one party alone.
The response reveals there has been a 50% reduction in the take-up of mediation between separated parents.
‘Whereas previously most solicitors would advise their clients as to the advantages of mediation/ADR, there are now far fewer opportunities for cases to be diverted away from the courts.’
There is even criticism of the government’s policy of a safety net of exceptional funding for particular cases.
The judges’ response says: ‘Our experience appears to indicate that “exceptional cases” funding is very seldom obtained even where there are learning difficulties, mental health, drugs and domestic violence issues.’
Apart from inquests, only 14 applications for funding out of 1,012 made between 1 April and 31 December 2013 were successful. ‘It is a considerable cause for concern that approval is granted for so few cases and in such a low proportion.’
The Judicial Executive Board is chaired by lord chief justice Lord Thomas. The other members are the: master of the rolls (Lord Dyson); president of the Queen’s Bench (Sir Brian Leveson); president of the Family Division (Sir James Munby); chancellor of the High Court (Sir Terence Etherton); vice-president of the Queen’s Bench and deputy head of criminal justice, and chairman of the Judicial College (Lady Justice Hallett); senior president of tribunals (Sir Jeremy Sullivan); senior presiding judge (Lord Justice Gross); chief executive, Judicial Office (Jillian Kay).
A Ministry of Justice spokesperson said: ‘We are closely monitoring the impact of LASPO's legal aid changes. Latest figures show family court performance is being maintained with the average time taken to complete cases remaining steady since April 2013.
‘We have listened closely to any concerns raised and committed to reviewing certain aspects of the scheme in response. As a result we are widening the types of evidence that can be used in domestic violence cases and are looking closely at the operation of the legal aid helpline. We will continue to monitor the changes introduced by LASPO and will do a thorough review in due course.’