Proposed changes to legal aid will remove whole areas from the scheme, leaving many people little choice but to go it alone
Lawyers and “access to justice” campaigners are predicting that government plans to slash the £2.2bn legal aid budget by £350m will leave ordinary people fending for themselves in courts, clogging up the civil justice system and creating further delays.
If the Legal Aid, Sentencing and Punishment of Offenders Bill, published last month, goes on to the statute book in its current form it will remove entire areas of laws from the legal aid scheme. Important parts that will go include “social welfare law” – advice on welfare benefits, employment, debt, housing advice (except where there is the threat of homelessness) and immigration. Ministers will also remove publicly funded legal advice for private family law including that on divorce, child custody and child support.
“If large numbers of parents are excluded they won’t simply abandon their wishes to have arrangements with their children resolved in the courts,” says Stephen Cobb QC, chairman of the Family Law Bar Association. “Instead they will litigate themselves. Cases with litigants-in-person almost always take longer than cases where advocates are involved, because the judge has to walk the litigant through the process. Court lists are going to become increasingly clogged up.”
On the government’s own figures there were 211,000 family cases where people received initial advice and assistance last year under the family legal aid scheme alone, 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.
“A culture of DIY law is going to be much more the norm in the courts,” predicts Richard Miller, legal aid manager for the Law Society. “Judges will try as hard as they can to ensure processes are explained. But litigants-in-person will need to understand that the points they want to make might not, necessarily, be germane to the case in law.”
This will leave the courts in “an invidious position”, he reckons: “Do they allow the unrepresented litigant to present irrelevant evidence, or do they cut them off and risk them feeling that they haven’t been given a fair hearing? Inevitably, courts will face huge delays.”
Here’s what you need to know about presenting your own case.
Do I have a case?
Prospective litigants-in-person should ask four questions before embarking on action, says Luca Badioli, a debt adviser at Arun & Chichester Citizens Advice Bureau and chair of West Sussex Money Advice Group: “Do I have a good chance of winning? If I win, can the other party pay? Is this worth my time and money? Have I done everything to try to avoid proceedings?”
Badioli adds: “There’s no point in taking the matter to court unless you’ve a good case and the other party is in a position to pay.” If it is a money claim, check the Register of Judgments, Orders and Fines and insolvency register to see if the other party can pay; if they are a limited company, look at their accounts at Companies House.
Lucy Reed is a barrister and author of Family Courts without a lawyer: a handbook for litigants-in-person. She points to the wealth of online information about legal rights, notably Citizens Advice’s Advice Guide and Direct.gov.uk. “You can learn a lot through internet searches but use reliable recognisable organisations,” she advises. You can access legislation at the government’s legislation website but it’s not up to date, and case law at www.bailii.org, which also is not up to date and not terribly user-friendly.
Do I need a lawyer?
Depending on how serious the issue is and how complex the law might be, you may feel you need some legal input (even if you can’t afford it). A first port of call should be your Citizens Advice Bureau, advice agency or law centre. Also check your motor and household insurance policies for legal expenses cover. Many law firms offer a free first half hour of advice.
The Law Shop in Bristol advises on how best to handle straightforward matters, with DIY litigants paying £7 per five minutes. Most firms insist on being paid an hourly rate (£250 for a reasonably experienced solicitor) but, increasingly, they offer fixed fees.
The general rule in the courts in England and Wales is “costs follow the event”. “This means if you win, the other side picks up your costs and, conversely, if you lose you’re stuck with your own costs plus the other side’s,” explains Luca Badioli; adding that there are exceptions – for example, the small claims court and the employment tribunals – where, generally speaking, each side bears their own costs.
There is, for the time being, a civil legal aid scheme covering many areas of law, but most accident claims are excluded. Advice is means-tested and only about one in three people qualify.
You might be able to find a lawyer prepared to advise you on a no win, no fee basis. If you lose, your lawyer gets nothing and you pay nothing; if you win, your lawyer can double their fee and the other side should pick up your costs.
Unfortunately, the legal aid bill promises more bad news: the other side won’t have to pick up your costs and your lawyer’s success fee will come out of any compensation (subject to a 25% cap).
How should I prepare?
“It’s like going into exams when you’re a kid at school,” says Lucy Reed. “Make sure that you know where the car park is; have enough change; expect things to take all day; and make arrangements for childcare if they are stuck.”
“Take time to prepare the particulars of a claim – the statement making your case – and make sure witness statements are in order,” advises Badioli. Reed adds that if you’re going to produce documents “make sure they are provided for the court and for other parties such as your ex-partner or their lawyer. Make copies and send them out in advance”.
Consider taking a so-called McKenzie friend, who can’t speak on your behalf but can sit and support you and quietly take notes.
What should I expect?
“People can be frightened at the prospect of the unknown,” says Peter Brown. “They often have a picture in their mind of something they’ve seen on TV with images of wigs, gowns, and juries.”
However, he says that often the court proceedings (especially in the small claims and family courts) “take place in an office with a judge in a suit and everyone sitting around the table. It can be quite informal.”
Richard Miller says that court staff can be very helpful, especially for on-the-day assistance when it comes to filling in forms.
“They cannot give advice on the things you need to say or on your case but they can help with the generic issues.”
What will drive a judge potty?
“Litigants-in-person often struggle to understand the turn-taking process,” says Lucy Reed. “If there’s a lawyer involved they might get to explain the case first just so the judge can get their head around the issues. You will get the opportunity to have your say. Wait for the appropriate moment rather than butting in.”
What do I call the judge?
Don’t get too worked up about it, advises Peter Brown. “The default position is ‘Sir’ or ‘Madam’.
“It is only senior judges that are likely to be a bit crusty about being called Your Honour.”