Top judges express concern over increase of litigants in person
The increase in litigants in person (LiPs) will have led to miscarriages of justice, Lord Dyson, the Master of the Rolls, has told MPs.
Lord Dyson, giving evidence to the Justice Committee this week on the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, said: “I’m sure there will be cases where a party has lost a case because he or she doesn’t have representation. It’s impossible to prove, but it would be extraordinary if there had not been some cases which were decided adversely that would have been decided the other way had the litigant been represented by a competent lawyer, it’s inevitable.”
He recalled one example told to him by a civil judge of a case where a technical legal point arose. If the claimant had been a lawyer, they would have picked up on the technical point and would have succeeded. As the claimant was unrepresented, they did not notice the point and lost their case.
Sir James Munby, head of the family division, also giving evidence, said there was less chance in the family courts of a LiP missing out because of a purely legal point. However, he added that he was “quite sure” that there are cases where judges will not spot a point that a lawyer would have picked up, and where that can “make the difference between victory and defeat”. “It would be foolish to believe there are not such cases,” he added.
Sir James told the committee that the court rules are “incredibly complex” and “the framework assumes representation”. Pre-trial preparation is very important, he said, but most LiPs “are not capable of preparing a bundle of documents… even if it is a lever arch file rather than a plastic bag, you cannot assume you have everything”.
He said a trial involving a LiP can be shorter because they tend to “dry up” in court but that the pre-trial hearing takes more time.
Lord Dyson agreed that LiPs can be “over-awed” in court, and that “they freeze, frankly”. He said problems arose at the pre-hearing stage where lawyers usually narrow the issues, focus on what matters and know what directions to ask for. LiPs need legal advice at an early stage, he added.
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