The government and judicial office must overhaul training, advice to litigants and the nature of the court process itself to deal with thousands more litigants in person (LIPs), a judicial working group has concluded.
In a report published today, the working group, made up of senior judges, says the problem lies with a system not yet equipped to deal with LIPs.
The group considers it vital that judges are ‘enabled and empowered’ to adapt the system to the needs of LIPs, rather than vice versa.
Judges should also be strongly encouraged, the group says, to deal proactively and robustly with vexatious litigants, in particular by declaring when appropriate that claims and applications are 'totally without merit' and through the use of orders restraining individuals from issuing and pursuing claims.
- The Ministry of Justice should produce materials to inform LIPs what to expect when they go to court;
- The Judicial College should develop training courses and ‘toolkits’ for dealing with LIPs;
- Procedural rules must change to give more support during the court process;
- Judicial Office should urgently consider a wider review of lay assistants.
The report deals with the inevitable increase in numbers of LIPs following the Legal Aid, Sentencing and Punishment of Offenders Act’s coming into force in April.
The government’s figures state that 623,000 of the one million people who benefit from legal aid every year will be denied access, and the report said it would be ‘naïve to assume anything other than a substantial rise’ in LIPs.
On information for LIPs, the group wants the government to review its printed, audiovisual and web-based advice for preparing and presenting a case in a court or tribunal.
Online resources should also be available for court staff and the judiciary in addition to new programmes of training and the appointment of designated local judicial figures to update on changes and developments.
The group puts forward three proposals to change procedural rules, including introducing a specific power that would allow the court to direct that proceedings be conducted by way of a more inquisitorial form of process.
On lay assistants, it calls for the Judicial Office to urgently consider new rules governing the exercise of the right to reasonable assistance, the right to conduct litigation and the right to exercise rights of audience.
In particular, the group wants the head of civil justice and heads of division to re-examine whether the term ‘McKenzie Friend’, an assistant to an LIP in court, continues to be useful.
The judicial working group was formed last December at the request of the master of the rolls.
Although prompted by cuts to legal aid funding, the group had scope to examine not just the effects of those reforms but also changes to civil and family courts and tribunals.
The group consisted of: Mr Justice Hickinbottom (chairman), District Judge Ayers, His Honour Judge Bailey, Professor Dame Hazel Genn, District Judge Lethem, His Honour Judge Martin, Mrs Justice Parker, Alison Russell QC, Regional Employment Judge Carol Taylor and Penny Williams JP DL.
The Judicial Office said it had supported the production of the report 'and will support the judiciary in its consideration and implementation of the report's recommendations'.
However, the government played down the need for action. Lord McNally, the justice minister, responded: 'There have always been a significant number of people representing themselves in court — they did in around half of all child custody cases last year - and we provide information and guidance to help them.
'Judges also have expertise in supporting them, for example by explaining procedures and what is expected. Evidence shows that cases where people represent themselves are normally completed quicker.'