WALES/ENGLAND – Judicial Working Group publishes recommendations to assist with expected surge in litigants in person

Information for LiPs, judicial training, rule changes and McKenzie Friends considered by group

The Judicial Working Group on Litigants in Person, under the chairmanship of Mr Justice Hickinbottom, has produced its first report.

The report notes that according to the Government’s own figures, 623,000 of the one million people who benefit from Legal Aid every year will now be denied access to this aid from the changes which came into force from 1 April 2013. The report therefore presumes a substantial rise in the number of litigants in person.

The Working Group sets out the key issues that litigants in person present for the courts and tribunals, as a basis for recommending measures to help address those issues. Some of the issues, the Group states, cut across jurisdictional boundaries; others are more prevalent in particular jurisdictions: for example, the difficulties posed by the highly emotive nature of many cases in the family courts. The report contains recommendations that the Ministry of Justice (MoJ) / HMCTS should devote the necessary work and resources to: 

• Producing, with judicial involvement, appropriate materials, including, especially, audiovisual materials, to inform litigants in person what is required of them and what they can expect when they go to court. 
• Undertaking, urgently, a thorough review of its web-based information, to ensure that litigants in person can easily access the information they need to understand and decide on the various courses of action open to them, and to prepare for, and present, their case in a court or tribunal.

The report also contains recommendations that: 

• The Judicial College should consider, urgently, the feasibility of developing a training course (or courses) on litigants in person.
• The design of all future training on practice, procedure, and judge-craft should have regard to the fact that a much higher proportion of court and tribunal users will be litigants in person. 
• The Judicial College should begin, urgently, work to develop a ‘litigants in person toolkit’ for judges, utilising existing draft guidance and the relevant chapter of the Equal Treatment Bench Book. 
• The Judicial Office and MoJ/HMCTS should hold, urgently, discussions to establish the most appropriate way to develop a central online resource to which staff and judiciary could easily refer in order to identify nationally available sources of advice and assistance for litigants in person; further work to be informed by the outcome of those discussions. 
• Designated civil and family judges, and, where appropriate, chamber presidents, as the most appropriate local judicial figures, should be given joint responsibility for ensuring that the judges in their respective areas are kept fully informed of locally available sources of advice and assistance for litigants in person.

Recognising that one of the fundamental challenges for judges, particularly in the civil courts, is how to give legitimate assistance to litigants in person while remaining fair to represented parties, the report considers the procedural rules. It contains recommendations that the Judicial Office should undertake, urgently, further work to assess the merits of three proposals: 

• Provision of a dedicated rule that makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person. 
• Introduction of a specific power into CPR Rule 3.1 that would allow the court to direct that, where at least one party is a litigant in person, the proceedings should be conducted by way of a more inquisitorial form of process. 
• Introduction of a specific general Practice Direction or new Civil Procedure Rule that would, without creating a fully inquisitorial form of procedure, address the needs of litigants in person to obtain access to justice while enabling courts to manage cases consistently with the overriding objective.

In light of the increased significance of the right of litigants in person to call on lay persons for support after 1 April 2013, another part of the report briefly considers the role of the McKenzie Friend and others who litigants in person may ask to assist them. This part of the report contains recommendations that: 

• The Judicial Office should consider, urgently, rationalising the historic differences between practice in the court system and practice in tribunals, as part of a wider review of lay assistants. 
• As part of its review, the Judicial Office should consider, urgently, the merits of introducing into the CPR and FPR, as has recently been introduced in Scotland, rules governing: i) the exercise of the right to reasonable assistance; ii) the right to conduct litigation; and iii) the right to exercise rights of audience. 
• The Head of Civil Justice and Heads of Division should consider, urgently, the terminology that should be used, including whether the term “McKenzie Friend” continues to be useful.

The final part of the report briefly considers the impact of vexatious litigants. This part of the report contains a recommendation that judges should be strongly encouraged, through appropriate judicial leadership channels, to deal proactively and robustly with vexatious litigants, in particular by declaring appropriate claims and applications “totally without merit” and through the use of orders restraining individuals from issuing and pursuing claims.

The report can be read in full here.

SOURCE: Family Law Week