A report has been published by the Judicial Working Group on litigants in person. It explores possible judicial responses to the expected rise in litigants in person caused by the recent cuts to public funding for legal aid.
The report draws few concrete conclusions, effectively just stating the need for further consideration about the issues at hand. It asserts that if these issues are tackled, then this would assist non-lawyers to navigate their way through the courts. The report is based on the assumption that there will be a significant increase in the number of litigants in person as a result of the changes – an increase significant enough to require a strategic response from the judiciary. This is an assumption that many in the pro bono sector (including myself) have made and – in a pre-LASPO world – it seemed logical to assume that it was a sound one. Post-LASPO, I can say that there have been a few surprises on that front.
Applications for pro bono assistance are up 29% on last year – a significant increase, but not on the scale we imagined. The only organisations which seem to be reporting the sorts of increases we envisaged are frontline advice agencies. LawWorks is not a frontline advice agency. We receive applications from people who are in need of in-depth assistance with their cases which they have been unable to access elsewhere (although we do not take on family law cases).
This may be because they do not qualify for legal aid, there are no legal aid providers willing to tackle their case and there may be no free legal advice agency which provides services in that area of law, or geographical area. Their cases are complex and so are not suitable for the 'clinics' help model as they cannot be dealt with in a short, one-off appointment.
LawWorks does not widely advertise this service because of the limited resources it has to deal with the applications that come in. If it were widely advertised, doubtless it would be inundated with applications but sadly it has neither the casework staff in the office, nor the pro bono lawyers to tackle that volume. We rely on the advice sector to raise awareness of our service and refer individuals to us in appropriate cases.
The recent closure of Birmingham Law Centre is a sign of the desperate state of the frontline advice sector. Law centres are closing all over the country. The London Legal Support Trust – an organisation which exists to raise and distribute funds to advice agencies in London – is reporting its most difficult year yet. It is inundated with applications from deserving organisations in need of emergency funding to help them stay open, help during time gaps between funding streams and also tackle cashflow problems caused by legal aid being paid in arrears.
Most people who apply to LawWorks only know of our service because they have had some assistance from an advice agency but they require further help. Often, in these cases they are seeking assistance in issuing a claim, or amending a defective claim. I would imagine that most litigants in person who find their way into court, in front of a judge, have done so with at least some guidance from an advice agency at some stage.
As these agencies continue to close will these people still find their way to court when they have a valid claim but no one to assist them in managing it? What about those who believe, wholeheartedly that they do have a claim but in fact have no legal basis for their case – how will they be dissuaded from carrying on? And how will anyone who is not articulate, well-educated and familiar with the court system cope with the procedures in place – will they manage to pay the fees, get the forms in the proper order and get past the court office?
Research from the Legal Services Board demonstrates that not everyone responds to a legal problem by taking legal action. Perhaps this number will just increase as the front line advice sector closes. If your landlord kicks you out without notice, you don’t have to sue them. You could just accept it and move on. If you happen to lose all your belongings as a result, that’s just life. If you can’t afford a lawyer and your local law centre does not exist, where do you begin?
In addition to its recommendations for more practical assistance to litigants, the working group’s report talks about the time saving benefits of judges being able to decide applications on the basis only of the papers. It also talks about the need for judges to deal robustly with vexatious litigants. If this is the new approach, an individual who has received no legal assistance whatsoever has even less chance of having their case proceed past court office if there is an increased need for properly presented papers and less tolerance for apparently unmeritorious cases. That’s not to mention the court fees payable, and the lack of awareness of, and eligibility for, the court fee remission scheme.
It is, of course, commendable that the judiciary is making an effort to accommodate litigants in person. However, the court hearing is the last stage of the process of accessing justice. I wonder whether the massive reductions of funding, and subsequent loss of infrastructure in the advice sector will leave people so bewildered that time in front of a Judge will remain a luxury to which only a few will have access.
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