Everything must be done to ‘simplify and demystify’ the law to help the increasing number of self-litigants, according to the Civil Justice Council (CJC).
In a report to the lord chancellor and lord chief justice published yesterday the CJC calls for action to assist litigants in person in the face of legal aid cutbacks. It says what it calls litigants with no legal representation will become ‘the rule rather than the exception’.
The report follows a CJC working group examination of how litigants with no legal representation are likely to be affected by reductions in funding for legal advice and representation, and ways in which public and voluntary bodies can best respond to the resulting challenges.
It emphasises the importance of obtaining early advice on the merits, risks and costs of the process of the case.
Among 10 ‘immediate actions’ the review recommends improving existing website information about the court process and the law; publishing a ‘nutshell’ guide for self-represented litigants; providing judges with information about existing pro bono advice and assistance; and publishing a guide for lawyers acting against a litigant in person.
It says: ‘Everything must be done to simplify and demystify the law and the system including its language, including court forms, procedures and hearings.’
The report calls for concerted leadership to drive collaboration between advice agencies and pro bono initiatives, including freeing up in-house lawyers to provide pro bono services.
In the longer term, it recommends more public legal education and extending the Personal Support Unit network to more courts in England and Wales.
The review highlights the importance of the role that judges will have to play, suggesting that the judiciary is ‘at the heart of addressing what needs to be done’, through more judicial case management and explaining the process.
In addition, the report says the role of the mediator is an ‘important one’, suggesting that mediation needs to be understood better by all participants in the civil justice system.
It also says more research is needed into self represented litigant numbers, makeup, trends and experience, including into the potential for knowledge-based, IT-assisted, systems that can help people analyse a problem and reach a decision.
The report notes that the proposed reduction of publicly funded legal aid is likely to result in a ‘substantial increase’ in the numbers of litigants representing themselves unaided. ‘Such litigants will be the rule rather than the exception.’ It predicts: ‘The result will be no access to justice for some, and compromised access to justice for others,’ because people will either abandon their efforts to bring or defend a claim or will do so badly.
It stresses: ‘Even if all the recommendations we make are acted upon, they will not prevent the reality that in many situations, as a result of the reductions and changes in legal aid, there will be a denial of justice. There must be no misunderstanding about this. Put colloquially, the recommendations are about making "the best of a bad job".’
The working group’s chairman, Robin Knowles QC, said: ‘We know there will be an increase in the numbers of self-represented litigants at just the time when the advice sector is also facing cuts in funding. It is impossible to overstate how important it is for people to have access to justice in a free society. As our report highlights, it is crucial that we get the right information to people to help them resolve their disputes at the right stage.’
Welcoming the ‘timely and valuable’ report, the master of the rolls and chair of the CJC Lord Neuberger said: ‘It seems clear that there will be increases in the number of litigants in person wanting to use the courts and requiring practical assistance. The report produces a very comprehensive overview of the issues likely to arise, and offers some ideas for how best those issues can be addressed given the financial context we are operating within.'
A Ministry of Justice spokesperson said: 'We recognise there will always be risks for anyone bringing a case by themselves. That is why we are improving the information and support available to them, for example simpler forms and guidance and new online information on the Directgov website.
'But we want people facing serious problems to be aware of their options so they can choose the most suitable way forward for them, which will not always be to take legal action. And legal aid will remain available for anyone at risk of serious violence, or losing their liberty or home, or where children may be taken into care.'
The full report can be found on the judiciary site.