Cuts on this scale demand a co-ordinated response in law education, guidance and resources, or the system won’t work
A couple of years ago I spent a memorable day at the Royal Courts of Justice’s Citizens’ Advice Bureau. I met Kamal, a 42-year old former civil servant, who told me of his “traumatic” experience in the courts and how he had “lost six or seven years of my life trying to seek justice. When you’re in this country you’re led to believe that there is this thing ‘justice’. That it’s not a banana republic, but when you stuck in the system you soon realise that’s not true”.
His was a convoluted story beginning with what he claimed was a sustained period of bullying during his time as an administrator in the civil service starting in 2001. Kamal won his unfair dismissal case in 2004 but lost claims for racial discrimination and personal injury. He was awarded £13,000 but walked away with less than £1,000. The tribunal ruled that there was a high probability he would have been dismissed lawfully if the employer had adopted a fair procedure.
I met Kamal on one of his regular visits to the CAB. He told me he was on antidepressants and blamed the pressure of the litigation on a recently collapsed marriage – “the stress means you can’t give your family the time they deserve”. He was seeking advice over a separate action as a result of a back injury that he believed was caused by being forced to repeatedly pick up heavy files as part of the campaign of harassment. He had also put in a claim for psychological damages. The action had just been dismissed in the central London county court. Kamal faced a costs order of £25,000 nonetheless; he was applying for permission to appeal (£250). He had no representation in court, except the unfair discrimination case (from the then Commission for Racial Equality) and the court’s CAB service.
The legal aid cuts will mean that increasingly, litigants-in-person like Kamal will end up in our courts. The fate of unrepresented litigants has never been properly recognised by legal policymakers. “Key point” number one in a new literature review on the subject by the Ministry of Justice conceded that there were “still a number of gaps in our understanding of this issue”. Lawyers often dismiss litigants-in-person as “vexatious” or plain bonkers. It is an unfair caricature. A 2005 study by Professor Richard Moorhead and Mark Sefton of Cardiff University found that “difficult” litigants were “a very small minority”.
Anyhow, when the legal aid cuts go through, they won’t be so easy to dismiss. “DIY law” in our courts will go mainstream. The legal aid, sentencing and punishment of offenders bill, published last month, will scrap legal aid for social welfare law (welfare benefits, employment, debt, most housing and immigration) and private family law including advice on divorce, child custody, and child support. For many, the “early intervention” safety net whereby prospective litigants are given a reality check as to the merits, value and costs of bringing a legal action will be gone.
To put this into perspective, there were 211,000 family cases last year where people received initial advice and assistance under the family legal aid scheme and a further 53,800 cases where they received representation before the courts. All family cases are to be scrapped under the legal aid scheme unless there is evidence of domestic violence.
“Everyone we speak to agrees litigants-in-person will increase once access to early intervention social welfare law and family is removed,” says Alison Lamb, director of the Royal Courts of Justice CAB. A point made forcefully by a new report by the justice select committee on the operation of the family courts, which argued that it was self-evident parents would not give up applications for contact, residence or maintenance simply because they did not have legal aid. “We’re concerned that the Ministry of Justice does not appear to have appreciated that,” the MPs noted.
So where do these DIY litigants turn to? The RCJ bureau deals with inquiries from more than 11,000 people a year, all either about to be involved in court proceedings or already involved in court proceedings. This is before the cuts. It represents apparently a 40% increase on the numbers since I visited the bureau two years ago.
Prospective DIY litigants need to be aware of many things before embarking on legal action. Perhaps, above all, they need to understand their exposure to huge costs (not just their own but on the other side too). Jacqui Brooks, a duty solicitor at the bureau this week, told me about a recent client embroiled in a dispute over a will. He has just been ordered to pay £75,000 in costs to his brother, who has won a charging order to force the sale of the client’s house. The client is on benefits and both his wife and son are disabled.
Lamb remarked upon the irony that at this moment in time the future of the RCJ CAB is “vulnerable”. They receive a £283,000 grant from the Legal Services Commission that pays for four full-time lawyers. It is money well spent for a service that supports a massive pro bono effort involving about 200 solicitors. As Lamb tentatively puts it, the bill has “not directly addressed the future availability of grants such as ours. We continue to make a case for our service being funded as we are the main source of support for litigants-in-person.”
Cuts on this scale demand a co-ordinated response from government, the courts, the judiciary and the profession to help DIY litigants or the courts are going to grind to a halt. There are many aspects to this debate but to look at one, effective self-help measures that might assist this new generation of litigants in person, there urgently needs to be better information freely available.
Barrister Adam Wagner argued recently for greater “access to the law” and rightly made the point that access to justice doesn’t just mean getting a lawyer. I agree, but the public needs so much more than the law. Lawyers might like nothing better than to sit down with a cuppa and a volume of Halsbury’s Statutes. But lawyers aren’t like ordinary people. The public finds the law incomprehensible. They need access to information about legal rights (different from case law and statute), written without legalease, plus guidance about legal process (complete with warnings as to costs). All this needs to be delivered through targeted public legal education programmes. The government and ministers need to get behind and reinvigorate the public legal education movement, led by the Advice Services Alliance.
The dearth of decent online information about legal rights is shocking. There are notable exceptions (Citizens Advice’s Advice Guide and Advice Now’s Living Together) but frankly there is an information desert out there. The internet, rather then being a useful resource for those in need of legal help, has become overcrowded, difficult for consumers to navigate and unreliable. It can be a treacherous place for those seeking legal help when law firms and claims companies regard it as a marketing opportunity to trade prospective clients for referral fees.