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Civil Justice Quarterly
2013
Do-it-yourself law: access to justice and the challenge of self-representation
Professor Dame Hazel Genn*
Subject: Civil procedure . Other related subjects: Family law. Legal advice and funding.
Keywords: Access to justice; Family proceedings; Litigants in person; Vexatious litigants
Legislation:
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c.10)
Case:
McCartney v Mills McCartney [2008] EWHC 401 (Fam); [2008] 1 F.L.R. 1508; [2008] 3 WLUK 376
(Fam Div)
*C.J.Q. 411 In the context of major changes to the legal aid system under the Legal Aid and
Sentencing of Offenders Act 2012, this article discusses the likely consequent growth in the number
of litigants in person (LIPs) involved in proceedings in civil and family courts and tribunals. It
considers the challenges this development presents for the litigants, judiciary and justice system and
reflects on how the judiciary, procedure and advisers need to adapt to facilitate effective access while
restraining abuse of process.
It also argues that lack of information about the volume and characteristics of different categories of
LIPs constrains our ability to devise measures that effectively address the range of challenges.
Litigants in person, legal aid and access to justice
In ancillary relief proceedings in the High Court in March 2008, Heather Mills McCartney was awarded
£24.3 million of Sir Paul McCartney’s fortune as compared with the £125 million that she originally
claimed following their divorce. During the six days of the High Court hearing Ms Mills represented
herself. The parties wrangled over the extent of Sir Paul’s fortune, how much money Ms Mills had
brought into the relationship, who had and who had not behaved unreasonably. At the end of the
hearing, the judge, Bennett J., concluded that Sir Paul had been a "truthful witness" who had shown
understandable signs of frustration during the course of the proceedings, while Ms Mills was prone to
"exaggeration and make-belief". He said:
"The husband’s evidence was, in my judgment, balanced. He expressed himself moderately though at
times with justifiable irritation, if not anger. He was consistent, accurate and honest. But I regret to
have to say I cannot say the same about the wife’s evidence. Having watched and listened to her give
evidence, having studied the documents, and having given in her favour every allowance for the
enormous strain she must have been under (and in conducting her own case) I am driven to the
conclusion that much of her *C.J.Q. 412 evidence, both written and oral, was not just inconsistent
and inaccurate but also less than candid. Overall, she was a less than impressive witness." 1
At the close of the proceedings, Ms Mills walked across the court and poured a jug of water over the
head of Sir Paul’s divorce lawyer, Fiona Shackleton. On the steps of the Royal Courts of Justice after
the hearing, Ms Mills gave an impromptu press conference. Scornful of the process she had just been
through and of the legal system itself, she declared that she regretted nothing about having
represented herself and encouraged others to do the same:
"Do it yourself, be a litigant in person - the courts don’t want me to say this…. The judge already had
his whole statement written up before we did our submissions. He just read it out. These people are in
a club. They want to stay together. They don’t want to see a litigant in person do well…. What I’d like
to say, being a campaigning girl, is…..if you’re going through a divorce …you can be a litigant in
person. It’s not easy, but just make sure you do all your research, save yourselves a fortune. …Do it
yourself, be a litigant in person, the power of one - the Law Courts do not want me to say this." 2
Although Heather Mills was an unusually high-visibility example of a litigant in person (LIP),3 the
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issues in dispute in court were not exceptional. In fact, the substance of the case was to some extent
mundane: a warring husband and wife, entrenched differences of view about the division of property,
ill feeling, and accusations exchanged. Aside from the glitter of the protagonists, the case was not
remarkable, and while Heather Mills’ decision to represent herself was noted in press comment, it was
not viewed as extraordinary. She was merely one very public instance of the long-standing
phenomenon in English courts and tribunals of litigants in person. It is clear, however, that the
experience was not wholly positive for her. The judge’s remarks show that Ms Mills did not come
across well in court and she evidently failed to provide the court with the evidence it needed. In the
end, the court awarded her far less than she had claimed. Had her case been better constructed and
presented, she might possibly have been awarded more.
Another high profile but more extraordinary example of LIPs is the notorious "McLibel" case in which
McDonald’s issued libel writs against five Green Peace activists after they published leaflets in 1989
accusing McDonald’s of encouraging litter, mistreating animals and workers, and destroying rain
forests. The activists were told to retract and apologise, or to prove in court that the claims were true.
Three of the five retracted their statements, but Helen Steel and David Morris *C.J.Q. 413 decided to
fight the case in court. Without legal aid (excluded from defamation cases), and with no personal
resources, they conducted their defence largely without legal assistance. The full libel trial started in
the High Court in London in 1994. Transcripts of the trial ran to 20,000 pages; there were about
40,000 pages of documentary evidence and some 130 witnesses gave evidence. On March 13, 1995,
"McLibel" became the longest British libel trial; on December 11, 1995, it became the longest civil
case in British history, and on November 1, 1996, it became the longest trial of any kind in English
history. The trial ended in 1997 after 313 days. Steel and Morris were ordered to pay McDonald’s
£40,000 which they have never done and McDonald’s paid a legal bill somewhere in the order of £10
million. The cost to the taxpayer has not been estimated.4
Although such unusual examples of litigants in person occasionally hit the headlines, we have not
been accustomed to significant public debate about the right to self-representation, the number of
people appearing without representation in courts and tribunals or their experiences.
Self-representation has, however, recently been attracting increasing attention in England and Wales
and in common law jurisdictions around the world from Hong Kong and Australia to the United States
and Canada. At home, this concern has significantly intensified with the implementation of the
controversial Legal Aid and Sentencing of Offenders Act 2012 (LASPO).
LASPO came into effect on April 1, 2013 and with it the Legal Aid Agency, which replaces the Legal
Services Commission. The Act implements the Coalition Government’s reform of legal aid provision. It
effectively removes from the scope of the system most of the civil and family matters that had
survived the Labour Government’s legal aid reforms implemented in the Access to Justice Act 1999.
Legal problems previously within the scope of the legal aid system now excluded from legal aid
provision include debt, welfare benefits, employment, education, most housing disputes, private
family law (divorce disputes or disputes about children), non-asylum immigration, clinical negligence,
consumer or contract disputes, and criminal injury cases. In the extensive and heated debate during
the passage of the Bill through Parliament, the reforms were often presented as an aberrant and
novel attack on the legal aid system. But taking a longer view, one can see LASPO as another, or
possibly final, step along a path well-trodden by consecutive governments in determined pursuit of
non-criminal legal aid expenditure curtailment.
Between its establishment in 1949 to the beginning of its decline in the mid-1980s, the legal aid
system in England and Wales developed into one of the most comprehensive schemes in the world.
In an analysis of the rise and fall of English civil legal aid, Roger Smith argues that from the middle to
the end of the twentieth Century, England was a "global leader" in the provision of publicly funded
legal services. Entitlement to benefit from the legal aid scheme extended to a large proportion of the
population and many private practitioners provided legal aid services. In the 1990s, the provider base
for the scheme expanded to include not-for-profit advice agencies and Law Centres. These new
providers *C.J.Q. 414 tended to provide specialist advice and representation for social welfare
issues—what Smith refers to as "poverty law".5
The original objectives of the legal aid scheme were to provide "legal advice for those of slender
means and resources, so that no one will be financially unable to prosecute a just and reasonable
claim or defend a legal right."6 The development and maintenance of a comprehensive legal aid
system—at least to the mid-1990s—is a manifestation of government commitment to the ideal of
equality before the law and equal access to justice.7 It reflects the centrality of access to justice to the
idea of the rule of law as an "end state in which all individuals, institutions … and the state itself are
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held accountable to the law."8 Substantive legal rights are of little value to citizens if they lack the
awareness, capacity or facilities to recognise such rights or to participate effectively in the justice
system. The provision of legal services at public expense acknowledges the challenge for parties
embarking on litigation without advice and advocacy and that "denial of access to legal services is a
form of the denial of access to the legal system."9
Since the mid-1980s, however, successive governments have reviewed, revised, reorganized and
re-shaped the legal aid system.10 Although the rhetoric accompanying legal aid reform has varied
depending on the particular administration, the consistent objective for the past two decades has
been to control expenditure, principally in relation to civil and family justice. Legal Aid speeches,
consultation papers and reviews from the Conservative Thatcher/Mackay era of the mid-1980s to
mid-1990s talked of a "demand-led system" out of hand, permeated with "perverse incentives" for
legal aid lawyers.11 The solution was to have been the imposition of a fixed budget for legal aid,
contracting with providers and quality audits. Voted out of office in the 1997 General Election, before
their legal aid reforms could be implemented, it fell to the incoming Labour party to progress the
change programme that the Conservative administration had begun. The Blair/Irvine era, starting in
1997, while sympathetic to the contribution that *C.J.Q. 415 legal aid could make to the reduction of
social-exclusion and poverty, took up the challenge of expenditure control. In pursuit of this end, they
explicitly peddled a paradigm-shifting rhetoric. Accompanying media reports of proposals for legal aid
changes were carefully planted case studies of solicitors and barristers earning large sums from legal
aid—the "fat cat lawyers". 12 The intention was to transform the concept of legal aid in the public mind
from a welfare benefit to a lawyer benefit.
The Labour solution to the containment of legal aid expenditure was the Access to Justice Act 1999.
The Act introduced a fixed legal aid budget, block contracts with legal aid providers, the extension of
conditional fee arrangements ("no win, no fee") to most civil cases together with the removal of many
civil cases from the ambit of the scheme. Although most civil cases involving damages and money
claims were removed from the scope of the scheme, social welfare issues, domestic violence, welfare
of children, and proceedings against public authorities alleging serious wrong-doing or breaches of
human rights were identified as priority areas for legal aid funding.13
Despite the removal from scope of many civil cases, between 1999 and 2005 expenditure on legal aid
continued to grow. This was largely because of the cost of immigration cases and failure to control
spending on criminal legal aid—a function of the Government’s criminal justice agenda.14 In the final
period of the Labour administration, however, a perception seemed to develop that the squeeze on
civil and family legal aid might have gone too far and the commitment to access to justice principles
re-asserted.15
The Cameron/Clarke Conservative/LibDem coalition era that followed the election of May 2010
transformed the language of legal aid again. Prior to the election, neither party had articulated
coherent justice system policies outside of the sphere of crime and criminal justice. A review of
pre-election manifestos reveals a sprinkling of proposals for family and civil cases, largely related to
legal aid, together with some suggestions about the need for procedural change. The first clear policy
statement from the new Government was their Transforming Justice agenda. Set in the context of the
global financial crisis and the need to save £2 billion from the justice budget by 2014–15, the
Government outlined its intention to reform legal aid. The proposals were accompanied by a new civil
justice rhetoric, which presented court proceedings as an unnecessary drain on public resources, and
portrayed public funding for civil and family disputes as an incitement to litigate rather than a means
of facilitating access to justice. *C.J.Q. 416 16
Six months into the new administration, the Justice Minister, Ken Clarke, announced his proposals for
radical changes to the provision of legal aid. While suggesting no significant modification to the reach
of criminal legal aid, he presented a dramatic cutting-down of the scope of civil and family legal aid,
arguing that the measures were needed to "stop the encroachment of unnecessary litigation into
society".17
Despite a co-ordinated campaign supported by the legal profession, advice sector, some senior
politicians and with members of the judiciary occasionally weighing in,18 the legal aid proposals
obtained Royal Assent in May 2012 and were implemented in April 2013.19 The removal of most civil
cases from the legal aid system has been accomplished, wreaking what is likely to be an irrevocable
change to the civil legal aid system and to concepts of access to civil justice. In a speech in March
2013, the Liberal Democrat Peer Lord McNally, who steered LASPO through its bumpy ride in
Parliament, predicted that the changes were likely to be permanent:
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"Getting LASPO through Parliament has not been easy. Members in both Houses have found the
particulars of the changes we have proposed difficult to accept. Yet I will make a prediction: No party
at the next General Election will promise to restore the cuts to Legal Aid imposed by LASPO." 20
In typically trenchant style, Roger Smith seems to agree with this assessment. He argues that LASPO
represents not simply another move in the legal aid game, but perhaps the end of the game itself:
"All major political parties and all governments operated on the premise that the poor were entitled to,
and would progressively receive, legal services available to the rich… The LASPO cuts essentially
reduce legal aid policy to one aim: the delivery of the lowest level of service that will comply with our
minimum obligations under the European Convention on Human Rights at the least possible cost." 21
Much as we might debate the range of factors contributing to Government pre-occupation with legal
aid in England over the past couple of decades, it seems *C.J.Q. 417 that the English experience of
foundation, expansion, and then decline of legal aid since the post-War period is consistent with an
international trend.22
The impact of LASPO on access to advice and LIPs
From the moment the Coalition Government laid out its proposed reforms to legal aid in November
2010, various interest groups and individuals warned of the negative impact of the changes to public
provision of legal advice and representation and the deleterious effect on some of the most vulnerable
groups in society. The Government’s equality impact assessment accompanying the proposals
contained an acknowledgement that the changes would be likely to have a disproportionate impact on
women, ethnic minorities and people with disabilities.23 Predicted societal impacts included a
deterioration in case outcomes; wider social and economic costs; reduced social cohesion; loss of
respect for and compliance with law; increased criminality; reduced business and economic efficiency;
and increased resource costs for other Departments. The most recent updated equality impact
assessment24 estimates that around 623,000 people each year involved in legal problems and
disputes who had previously been helped through the legal aid system will no longer be able to
access this assistance following the implementation of LASPO.25 These will be people with common,
everyday legal problems such as debt, issues with the benefits system, poor treatment by employers,
or experiencing family breakdown and related difficulties. Their claims and cases will be "out of
scope."26
The wider effect on providers of legal advice for civil and family law issues is likely to be significant.
The LASPO reductions, combined with a decline in local authority funding will lead to a cutting back of
services and, potentially, to the closure of advice centres. Indeed, evidence is already beginning to
accumulate of adverse impacts. According to various local press reports, the funding for legal aid
services provided by citizens’ advice bureaux has been cut from £22 million in 2012 to just £3 million
as from April 1, 2013. The result is that a significant number of staff paid for by legal aid contracts will
be affected, in particular qualified staff that provide specialist advice for welfare, debt and employment
cases. As early as March and April 2013, various CABs around the country reported making staff
redundant because of legal aid cuts.27 In March 2013 it was reported that the housing advice charity
Shelter had been forced to close nine offices, losing around *C.J.Q. 418 100 jobs, as a result of a £3
million reduction in its legal aid funding.28 In April 2013, Flintshire CAB reported losing four staff as a
result of legal aid cuts.29
Other evidence of the consequences of funding reduction on the advice sector has recently been
published. A survey of 674 front line civil legal aid advice providers found that one-third were at risk of
redundancy and a similar proportion reported job insecurity (34 per cent).30 Others reported a
reduction in paid hours (13 per cent), and reductions in the legal services provided (17 per cent) as a
result of the cuts. The survey also found that those at greatest risk of losing their jobs were the most
experienced and qualified advisors. Unsurprisingly, given the areas removed from scope of the legal
aid scheme, advisors in housing, debt and welfare benefits were at greater risk of redundancy than
those advising in other areas of law.
The reduction in the availability of advice and representation will lead to two different outcomes. The
first is that many people will not attempt to enforce their rights or pursue remedies or entitlements.
They will simply "lump it" and live with whatever the consequences might be.31 This is the most basic
barrier to access to justice. We know from almost 15 years of legal needs studies that a significant
proportion of the population faced with everyday civil justice problems and disputes either do nothing
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at all or abandon attempts to seek redress. We also know that those on low or no incomes are
disproportionately likely to do nothing to enforce or defend their rights, often feeling powerless and
helpless, but also that there is a link between unresolved legal problems, poor health and increased
criminality.32
The second outcome is that parties with both strong and weak cases will seek to vindicate or defend
claims without the benefit of advice or representation, leading to an increase in the volume of LIPs in
courts and tribunals, presenting challenges to the judiciary, the courts and tribunals service, and to
litigants themselves.
Anticipating the likely effects of LASPO on the availability of free legal advice and representation, in
2011 a Civil Justice Council Working Group produced a thoughtful report entitled Access to Justice for
Litigants in Person, which warned of an influx of LIPs to the courts unable to find advice and
advocacy for their disputes.33 The Report points out that the design of the changes to the legal aid
*C.J.Q. 419 system will damage the provision of early accessible advice for social welfare problems.
34
Underlining the urgency of the situation the report argues that:
"Every informed prediction is that, by reason of the forthcoming reductions and changes in legal aid,
the number of self-represented litigants (i.e. LIPs) will increase, and on a considerable scale. Such
litigants will be the rule rather than the exception." 35
While the tone of the report is pessimistic about the future of legal aid funding for those on low
incomes, the challenge the Working Group set itself was not to argue for additional funds, but rather
to suggest a menu of practical measures that might mitigate the difficulties experienced by LIPs in
navigating the justice system. Despite the upbeat approach, the content of the report reveals the
magnitude of the challenge for those unfamiliar with legal vocabulary and common law adversarial
process, let alone substantive law. The recommendations of this CJC Working Group and their
continuing efforts are discussed further below.
Reinforcing the concerns expressed in the CJC Working Group Report, at the beginning of the legal
year 2012–13 the Lord Chief Justice addressed the issue of self-representation in his annual press
conference. He reported that there had already been a "significant increase" in the number of LIPs
appearing in courts and that this trend would only increase with the legal aid cuts. In his view, the
growing number of cases with LIPs on both sides was slowing down the courts and he felt that the
phenomenon was spreading. Picking up on this theme, in March 2013 the newly installed President of
the Association of District Judges took the opportunity to comment on the rise of unrepresented
parties in court and the impact this was having on the work of judges. He said that many more
litigants were representing themselves "without the legal knowledge and skills possessed by the
professional lawyer." In his view, this was having a direct impact on the role of judges:
"Nowadays, district judges are often required not only to decide the outcome of a case, but also to
tease out from the parties the issues, then establish the facts, ascertain the area of law involved and
then determine the outcome following statute and common law."
In July 2012, in a document on the modernisation of the family courts, Ryder J. (as he then was)
published guidance relating to the handling of LIPs in private family law cases:
"What is clear is that the courts will have to deal with a volume of previously represented parents.
They will not have had the benefit of legal advice to identify solutions to their problems or the merits
and demerits of their proposals. They will not have had identified to them the issues the court can
address before arrival at the court door. They will arrive without professionally advised applications
seeking permission to file evidence. Many will have no *C.J.Q. 420 idea what a conventional court
process entails and some will have difficulty in understanding its rules." 36
The latest reflection of mounting disquiet about LIPs is the establishment of a Judicial Working Group
on LIPs, which published a report and recommendations in July 2013.37 This judicial working group
has concentrated specifically on the response of the judiciary to the anticipated increase in LIPs
resulting from the LASPO reforms. Their focus has been judicial approach, court rules, judicial
training, and the provision of guidance for the judiciary in best practice for handling LIPs. Their
conclusions and recommendations are discussed in the final section of this article.
The weight of judicial speeches concerning LIPs, the establishment of working groups focused on
LIPs, and the length of media column inches devoted to the issue of LIPs tend to suggest a significant
and mounting issue for the English common law adversarial justice system. But there is little in the
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way of statistical information that could help to quantify the magnitude of the trend. Without reliable
data, it is difficult to assess the evidence base for some of the slightly apocalyptic predictions about
the impact of LASPO producing a flood of LIPs into the courts.
As is the case with so many aspects of the administration of justice, the data collected by HMCTS
and MOJ are ill-suited to answering some of the most basic research questions about the functioning
of the courts and tribunals system. This historic weakness means that debate proceeds too often on
the basis of anecdote, and that policy, formulated within the void of information black holes, is rarely
subjected to systematic evaluation. The consequence is that it is difficult to know when a policy might
have succeeded; and when it has failed, we are not in a position to learn from policy mistakes.38 The
growing phenomenon of LIPs appears to be following the traditional pattern. Despite repeated media
stories about the growth in LIPs, despite the concern expressed by the judiciary, and despite the
MOJ’s own pre-LASPO review of data sources and research on LIPs revealing a shocking absence of
reliable evidence,39 it seems that the only data currently being collected and published by HMCTS
relate to representation in family proceedings.40 Even this information is doubtful since the
identification of "parties without representation" is based on a single field on the court’s management
system (FamilyMan) in which court staff record whether parties have legal representation *C.J.Q. 421
or not. The MOJ itself accepts that this is not the same as being a "litigant in person".41
Material combined from a number of sources suggests that there is already a substantial proportion of
unrepresented parties involved in family and civil court proceedings and the signs are that this
proportion is increasing. For example, statistics from the Personal Support Unit at the Royal Courts of
Justice show year on year increases in the number of LIPs receiving support in the RCJ. In 2012,
there was a 37 per cent increase over the previous year in the number of clients assisted nationally
and in London alone the PSU dealt with around 4,000 clients.42 The PSU’s specialist family unit
experienced a 35 per cent increase in the number of clients in first quarter of 2011 and in that year
the Unit commented that they were
"supporting more and more men, many of whom report that they are struggling to keep up
maintenance payments, and more and more cases where both sides are without lawyers." 43
The PSU also provides services to an increasing number of clients at other courts and tribunals in
London.
The situation seems to be that we have already experienced some growth in the number of LIPs in
courts and tribunals and that the implementation of LASPO has led to escalating concern. This
apparent growth in LIPs seems to be consistent with developments around the common law world,
although we appear to be somewhat behind the curve. The United States, Canada, and Australia
have been dealing with the challenge of LIPs for some time, presumably because of constrained or
non-availability of legal aid for non-criminal matters, but jurisdictions such as Hong Kong and New
Zealand are beginning to face a similar situation.
In seeking to learn from the experiences of other jurisdictions and in developing measures designed
to facilitate access to justice for LIPs, it is important to gain greater insight into the phenomenon of
self-representation. We need properly to distinguish different categories of LIPs when we are
considering how to provide access to justice for those who genuinely need it and when we are
worrying about how to control or block behaviour that has crossed a line between legitimate and
acceptable use of legal proceedings into dysfunctional abuse of legal process. The remainder of this
article therefore discusses the principle of self-representation, different types of litigants in person,
and the challenges they face in using the justice system without legal advice or representation. The
final section reviews *C.J.Q. 422 some of the current recommendations for modifications to
adversarial procedure, transformation of the judicial role, and provision of information and advice.
The Right to self-representation44
Litigants in person are generally defined as those who conduct legal proceedings either wholly or in
part without legal advice. Although LIPs often tend to be lumped together, there are many different
varieties and configurations and several likely motivations for initiating or defending proceedings
without advice and/or representation. For example, individual citizens may self-represent, but so do
small and medium sized businesses. Litigants in person include those who are bringing actions to
vindicate or protect a legal right and those who are the subject of legal action being taken against
them. Some may proceed without representation because they cannot afford legal advice and cannot
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access free sources of advice. Others may self-represent as a matter of choice, because they feel
that legal representation is unnecessary or because they feel that they prefer to put their own case to
the court.
The right of an adult to self-represent in both civil and criminal legal proceedings is a long-standing
principle recognised in English common law45 and statute,46 although the right has a different history
in criminal from civil proceedings. In the United States, the right to self-represent in criminal
proceedings is enshrined as a constitutional right47 while the right to self-represent in civil proceedings
is a matter of statute based on English common law.48 In English courts, there is no formal
requirement that adult litigants obtain legal representation and courts have no power to impose it on
them. Litigants are entitled to proceed in person whether or not they have the financial means to hire
a lawyer and whether or not they have the capacity to conduct litigation effectively. Although this
principle operates in other common law jurisdictions49 —and in England we rather take it as
axiomatic—it is not the case everywhere. For example, in Germany there is no right to
self-representation. Instead, there is a contrary requirement that parties to legal proceedings, in
anything other than the most straightforward court procedures, must be legally represented. This is an
interesting point of contrast, which is worthy of further exploration. *C.J.Q. 423 50
However, in this jurisdiction, the right to self-representation is so familiar that we rarely pause to
reflect on it, although we might intuit its purpose. If forced to say why such a right exists, we might
argue that it manifests a commitment to the principle of autonomy and self-determination. That a
person going to court should have the right to choose whether to address a court personally in order
to progress or defend their case rather than to have an intermediary put the case for them. More
usually, however, we would be likely to say that the right to act in person is about access to justice.
Indeed, we might think that this right is the ultimate expression of access to justice; that every
citizen—no matter what their means or position in society—has the right of access to the court, and to
be heard by a judge in pursuit or defence of their legal rights. It has been argued that the right to
self-representation is implicit in the Magna Carta and certainly, the right of a litigant to address the
court personally preceded the right of lawyers to address the court on behalf of litigants.51 The right of
self-representation is seen as a positive feature of our justice system and something that supports the
operation of the rule of law as Lord Diplock explained in the Bremer case in 198152:
"Every civilised system of government requires that the state should make available to all its citizens a
means for the just and peaceful settlement of disputes between them as to their respective legal
rights. The means provided are courts of justice to which every citizen has a constitutional right of
access…. Whether or not to avail himself of this right of access to the court lies exclusively within the
plaintiff’s choice."
But this access to justice argument is problematic requiring some scrutiny. The right to
self-representation offers theoretical access to the courts for litigants that may be illusory. At the same
time, the right to act in person can generate significant negative effects and costs for opponents and
the court. The undesirable side of an absolute right to self-representation is that it is difficult to prevent
claimants and defendants from persisting unrepresented with actions, no matter how complex the
proceedings nor how much trouble their choice might create for themselves, their opponent, the court
and the justice system in general.53 In discussing the phenomenon of self-representation, then, we
need to consider both the access to *C.J.Q. 424 justice implications of the opportunity to
self-represent and the costs to justice implications. This requires a little more investigation and
analysis of the issues.
Access to justice for LIPs in English adversarial proceedings
Doubting the access to justice value of the unrestricted right to self-representation in English court
proceedings, Assy has argued that there has been a failure to explore the theoretical basis of the right
to self-representation because of a belief that it is "a natural expression of the right of access to court
and, as such, requires no independent justification."54 It is worth pausing to reflect on the question of
the extent to which the "right" or opportunity to self-represent constitutes a genuine access to justice
benefit. Essential elements in the concept of access to justice include knowledge of rights and
responsibilities, knowledge of systems for redress (both formal and informal), the ability to access
those systems, and the ability to participate effectively in order to achieve a just outcome on the legal
merits. Achieving "effective participation" in legal proceedings is particularly challenging for LIPs, and
the European Court of Human Rights considered the question of whether legal representation was a
fundamental pre-requisite of access to the court in the Airey case in 1979.55 The question was
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whether Mrs Airey had been denied access to the court because she could not afford representation
and was not able to secure legal aid. The Irish Government argued that because she was free to
represent herself, she did have access to the court. The ECtHR held that the purpose of the
Convention was to guarantee rights that are "practical and effective" rather than "theoretical or
illusory", particularly in relation to access to the courts and the right to a fair trial. The court held,
however, that legal aid in civil proceedings was not generally a requirement of access to justice. While
there might be circumstances where it was necessary because of the complexity of court procedures
or of the case, a state might afford access either through providing legal representation or,
alternatively, simplifying procedure.56
Although LASPO includes provision for "exceptional" cases now excluded from the scope of legal aid
to receive funding where exclusion might lead to a breach of the ECHR or EU law, this provision is
rudimentary and we do not yet know how the discretion to award exceptional funding will be used.57
Guidance from the Ministry of Justice suggests that the approach taken will be restrictive. The
Ministry advises that there are only "certain very limited circumstances" in which legal aid will be
required "in order to guarantee the effective right of access to a court in civil proceedings", and then
only in cases which involve the "determination of a person’s civil rights or obligations". The test to be
applied is *C.J.Q. 425
"whether the withholding of legal aid would make the assertion of the claim practically impossible or
lead to an obvious unfairness in proceedings. This is a very high threshold." 58
It seems then that effective access to justice for those excluded from the ambit of the legal aid system
and unable to afford the cost of legal representation will depend on their inclination for "do-it-yourself"
and their ability to navigate the complexities of the substantive law and procedure of the civil justice
system. This presents obstacles for LIPs, their opponents and the judges called upon to deliver fair
hearings and reach a just decision.
The source of at least some of these difficulties can be found in the adversarial nature of English
common law court procedure. The image of the adversarial trial is very familiar and its drama has
provided material for countless films and television series. Advocates, on behalf of their clients,
present to the court an interpretation of the law and facts of the case that is most favourable from the
standpoint of their clients’ interests. A principal justification for adversarial process, according to
Stephan Landsman, is that "the sharp clash of proofs presented by adversaries" will reveal the
information needed by the judge to reach a decision acceptable "to the parties and to society."59
A key element in adversarial proceedings is the neutral and passive judge.60 The purpose of the
judge’s passivity is to prevent her from reaching a view on the case too quickly and failing properly to
weigh all of the evidence. Adversarial presentation is thought to be an effective way of combating the
human tendency to judge swiftly those things that are familiar. This is the psychological process
known as confirmation bias by which we hear and evaluate evidence in a way that is consistent with
our pre-existing beliefs, rather than allowing our beliefs to be formed by the evidence.61 It is a natural
and common tendency in human reasoning.62 One form of confirmation bias is jumping to a
conclusion on the basis of a small amount of evidence and then fitting the rest of the evidence to the
initial hypothesis.63 According to Fuller, counsels’ opposing arguments in adversarial proceedings
hold the case *C.J.Q. 426
"in suspension between two opposing interpretations. While the proper classification of the case is
thus kept unresolved, there is time to explore all of its peculiarities and nuances." 64
Representation is essential for judges to perform their proper role in adversarial theory and it has
been argued that the integrity of the adjudicative process itself depends on the participation of
advocates.65 Without representation, the judge has to perform both his own role and, to some extent,
that of representative for unrepresented parties. To do this, Fuller argues, the judge has to formulate
the most effective argument for an unrepresented party and then, resuming his role as neutral arbiter,
"be ready to reject the product of his best mental efforts".66 Fuller concludes memorably:
"The difficulties of this undertaking are obvious. If it is true that a man in his time must play many
parts, it is scarcely given to him to play them all at once." 67
Fuller’s conclusion was that it would be impossible for a judge to be impartial towards the
presentation of a case in which he himself had taken part.
The central dilemma of the role of the judge in adversarial proceedings, must be confronted and
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overcome in order to provide access to justice for LIPs. The Judicial Working Group on LIPs,
mentioned above, has directly addressed this challenge and their recommendations are discussed
later.
Who are the litigants in person?
Developing successful strategies for managing the expected rise in LIPs in courts and tribunals ought
to depend on a thorough understanding of the volume and character of the population of LIPs and of
their experiences within legal proceedings. Unfortunately, there is a surprisingly slim corpus of
academic research in the United Kingdom (or indeed elsewhere) that helps us understand their
prevalence, motivations, objectives or reasons for appearing without representation. This data deficit
in relation to LIPs is vulnerable to being filled by anecdote. Many judges, prompted to discuss the
issue of LIPs, will wearily recount tales of tenacious repeat litigants who arrive in court with bags full
of documents. These experiences can dominate discussion of what is a multifaceted issue. While the
absolute number of persistent litigants may be relatively small (although we do not reliably know how
large or small it is) there is little doubt that they consume a disproportionate share of resources and
can create a strain on staff and the smooth functioning of courts. In understanding the phenomenon
of self-representation, it is necessary to distinguish between different types of self-representing
parties. This is important when we are considering how to facilitate access to justice for those who
genuinely need it and when we are worrying about the necessity to control or block behaviour *C.J.Q.
427 that has crossed a line between legitimate and acceptable use of legal proceedings into
dysfunctional abuse of legal process.
There are many different types of litigants in person, but for the purposes of discussion, it is
reasonable to propose two broad categories accepting that the line between the two categories is
porous and a LIP who starts in the first category may gradually transform into a member of the
second.
The first category—and in the imagination of most people who are not judges the paradigm example
of a LIP—is the one-off litigant in person: someone involved in a legal problem or dispute which
requires judicial determination in court or tribunal and for which they cannot access or afford legal
advice and representation. Typically, they may have tried and been unable to secure advice and or
representation; or they may have had some advice and not been able to afford representation; or they
may have had access to legal aid, which is now exhausted. They may be claimants or defendants.
They may be citizens involved in private disputes; they may be business people involved in
commercial disputes; they may be an individual seeking to challenge a decision by a public body. The
matter is important enough for them to take the step of appearing in legal proceedings without legal
support. This is the category of main concern in this discussion. However, it is necessary to consider
a second very difficult category, which may be relatively small, but because of the challenges it
presents to the legal system, distracts minds and discussion, and can overwhelm the attention of the
judiciary. Without reliable data, we cannot say confidently what proportion of litigants might fall into
this second broad category, nor do we have any consistent way of measuring whether the volume of
litigants in this category is increasing.
Vexatious or querulous litigants
This second broad category probably comprises a mixture of serial, persistent and ultimately what is
termed "vexatious litigants" involving repeated or relentless litigation that is largely or ultimately
without merit. The phenomenon of vexatious or troublesome litigation is not new. As one
commentator remarks "the courts have battled with both the ingenuity and pertinacity of such litigants"
since Elizabethan times when it was found necessary to take measures to "avoid trifling and frivolous
suits in law in Her Majesties court in Westminster."68
Although legal scholars have not devoted much attention to the topic, a few psychiatrists have spent
some time analysing the behaviour of vexatious or persistent litigants. A relatively recent study
describes different varieties of "querulous" behaviour (from the Latin for plaintive
murmuring)—involving the unusually persistent pursuit of a personal grievance in a manner seriously
damaging to the individual’s economic, social, and personal interests, and disruptive to the
functioning of the courts and other agencies attempting to resolve the claims.69 Querulous litigants
comprise three distinct categories that present with a relatively common constellation of behaviours
that may, or may not be manifestations of *C.J.Q. 428 mental disorder. These are unusually
Page10
persistent complainers, indefatigable litigators, and vexatious litigants.70
Reviewing individuals referred to their clinics71 —evidently extreme examples of all categories—the
authors found that those who used the courts extensively often appeared as unrepresented litigants
because they had exhausted their funds or the patience of lawyers, and sometimes because they
believed that nobody else could be trusted properly to present their case. A common pattern was an
individual who had been the victim of some injustice, but was ultimately led into a "devastating social
decline" by the quest for justice—to right the wrong done to them.72 The distinction between querulous
and difficult people is that difficult people will pursue claims filled with a sense of being victimised and
refuse to contemplate any but their own version of events—but will, in the end, settle for the best deal
they can obtain. Querulousness, on the other hand, Mullen and Lester argue, involves not just
persistence, but
"a totally disproportionate investment of time and resources in grievances that grow steadily from the
mundane to the grandiose, and whose settlement requires not just apology, reparation, and/or
compensation but retribution and personal vindication." 73
To this extent, the litigants will inevitably be frustrated because they are seeking remedies that the
courts are unable to offer. In trying to understand how apparently normal people become querulous
litigants, Mullen and Lester suggest that people have different vulnerabilities. Some people with low
pre-existing vulnerability
"may, because of some life event and the severity of the provocation, be precipitated into
querulousness while, at the other extreme, are those where querulousness is imminent and requires
only a modest stimulus to initiate." 74
Before becoming embroiled in the pursuit of grievances, many of the cases studied for the research
involved people who were functioning individuals, with families and friends and without obvious
antisocial traits. They did, however, share some characteristics that potentially made them vulnerable
to querulousness
"personalities with obsessional traits, self-absorption, and more than the usual levels of sensitivity and
self-reference…Some had limited social networks, were in marriages lacking intimacy, and were
people who felt their true abilities had never been adequately recognized: in short, rigid, disappointed
people short on trust, and long on self-importance. *C.J.Q. 429 " 75
The Personal Support Unit in the Royal Courts of Justice, which provides assistance to
unrepresented parties, estimates that around one-third of its 3,000 annual caseload of clients have
some form of mental health issue.76 We cannot know how many LIPs demonstrating abnormal
behaviour have been driven to this state by litigation. But whether abnormally persistent or vexatious
litigants should have our sympathy or opprobrium, it cannot be denied that they present a significant
challenge to the courts and place a strain on judicial and court resources.77
Since the mid-nineteenth century English courts have taken active steps to restrain various types of
activities regarded as repetitive, frivolous, without merit, or pernicious.78 The first legislation to control
vexatious litigants was the Vexatious Actions Act 1896. It is generally argued79 that the genesis of that
Act can be traced back to the activities of Mr Alexander Chaffers who over a period of some 30 years
filed 48 proceedings against a number of leading people—including the Prince of Wales, the
Archbishop of Canterbury, the Speaker of the House of Commons, Lord Chancellors and many
judges.80 Apparently, he was only successful on one occasion. Costs were regularly awarded against
him when he lost, but he never paid a penny. The determined Mr Chaffers was the first person
declared habitually vexatious under the Act and, as a result, he was prohibited from starting future
litigation without judicial permission. The Act deemed the conduct of Mr Chaffers and his like to be an
abuse of process, which caused a waste of the time and resources of the courts, as well as potential
harm to the subjects of his attentions. An account of his behaviour at the start of his career
demonstrates clearly early signs of querulous tendencies.81
The legislation first enacted at the end of the 19th century has since been exported around the world.
Today, legal behaviour judged vexatious in England and Wales continues to be regulated by common
law and statute.82 A person defined as vexatious will be prevented by a court order from issuing
proceedings without leave of the court. The Attorney General has the power under s.42 of the Senior
Courts Act 1981 (previously the Supreme Court Act) to apply to the High Court for an order to restrict
a person who repeatedly makes applications to the court, which the court deems to be without merit.
Once a referral has occurred, the Treasury Solicitor will launch an investigation into the litigant’s
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behaviour in the courts.83 In determining whether to declare a litigant vexatious or not, the court will
consider a number of factors. The precise number of proceedings required to *C.J.Q. 430 meet the
test is not specified in the legislation, but guidance from the Treasury Solicitor suggests that normally
they would expect around six separate claims to have been commenced which have been struck out
or unsuccessful before an application would be made to the court for an order.84 The court will take
into account all the surrounding circumstances including the general character of the litigation, the
degree of hardship suffered by defendants and the likelihood of the conduct continuing if an order is
not obtained. Such orders may be either for a specified period of time or indefinite, and may apply to
civil proceedings, criminal proceedings or both.
It is possible that changes to civil procedure since the Woolf reforms in 1999 have made it easier for
litigants to harry the courts with suits that have little merit. Certainly, the number of vexatious litigants
is rising rapidly as, we suspect, is the number of litigants in person. The list of those declared
habitually vexatious in the United Kingdom (published by the Ministry of Justice) currently has 190
names.85 The earliest listed name was in 1955 and the most recent was in 2010, but interestingly
almost one-third (58) have been listed since 2000.86
In that year, in a case concerning the fallout from relationship breakdown and contact issues, Lord
Bingham defined vexatious litigation and distinguished it from habitual and persistent litigation.87 He
said that the hallmark of vexatious proceedings is that
"it has little or no basis in law; that whatever the intention of the proceeding, its effect is to subject the
defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue
to the claimant; and that it involves an abuse of process of the court … in a way which is significantly
different from the ordinary and proper use of the court process."
The hallmark of persistent and habitual litigious activity, by contrast, seems to be that
"the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action…
automatically challenges every adverse decision on appeal; and…refuses to take any notice of or
give any effect to orders of the court. The essential vice of habitual and persistent litigation is keeping
on and on litigating when earlier litigation has been unsuccessful and when on any rational and
objective assessment the time has come to stop." 88
There has been particular concern at the rise in LIPs and habitual litigants turning up in the Court of
Appeal, and this dates back at least to the mid-1990s.89 In 2003, the Master of the Rolls reported that
there had been a *C.J.Q. 431
"significant increase of obsessive litigants determined to leave no procedural stone unturned,
regardless of whether they have any arguable ground of appeal. Nearly 40% of all who apply for
permission to appeal are litigants in person, of whom only one tenth can demonstrate that they have
arguable grounds of appeal. Yet each of them is entitled to an oral permission hearing. Each hearing
takes about half an hour." 90
After the case of Bhamjee 91 in 2003, involving a litigant who had made repeated applications to the
court, the Court of Appeal experimented with a new procedure for identifying and blocking permission
to appeal applications (PTA) deemed to be "Totally Without Merit" (TWM).92 An evaluation of the
experiment conducted over the period of one court term showed that more than two-thirds (68 per
cent) of oral PTA hearings involving LIPs were deemed to be TWM as compared with 27 per cent of
cases not involving a LIP. Some 77 per cent of paper evaluations involving LIPs were marked as
TWM as compared with only 14 per cent of paper evaluations involving represented parties.93 The
most common cases involving LIPs were immigration and asylum; employment appeals; general
procedure; and landlord, tenant and possession. Those least likely to involve LIPs were personal
injury, judicial review, general commercial and professional negligence cases.
The potential drain on court and opponent’s resources is illustrated by a single case observed for the
TWM evaluation. This case involved an oral hearing of a permission to appeal application by a
persistent LIP. The Court of Appeal judge was there, solicitor for the respondent local authority was
there, and counsel for the respondent was there, all having prepared what had become voluminous
paperwork. The LIP, however, did not appear. Nonetheless, the LIP’s application was duly considered
by those in the court.94
The current powers of the courts to deal with persistent unmeritorious claims and applications were
codified in 200495 and are now set out in the Civil Procedure (Amendment) Rules 2013. Part 3.11
Page12
contains the court’s power to impose one of three different types of Civil Restraint Order.96 A "Limited
Civil Restraint Order"97 stops a party who has made two or more applications that are TWM from
making further applications in the same proceedings without first obtaining permission *C.J.Q. 432
from a specified judge. An "Extended Civil Restraint Order"98 is wider and prevents further connected
applications or claims from being launched without permission. These two-year orders might be
considered for someone who has "persistently" issued TWM claims or applications. "General Civil
Restraint Orders" prevent any further applications or claims at all without permission from a judge.
These orders can be imposed on someone who
"persists in issuing claims or making applications which are totally without merit, in circumstances
where an extended civil restraint order would not be sufficient or appropriate." 99
These orders are for renewable two-year terms. The Ministry of Justice publishes the names of those
against whom General and Extended Civil Restraint Orders have been imposed. There are currently
35 general orders and 68 extended orders in force.100
Cases involving persistent, habitual or vexatious litigants present genuine difficulties for the courts.
The line between legitimate pursuit of an arguable case and the inability or refusal to achieve closure
after defeat is far from clear or bright, but effective measures to manage TWM litigation need to be
pursued. In particular, work needs to be done on finding ways to identify and close down potentially
troublesome litigation at an early stage. This is an area where the collection and analysis of data
relating to repeat litigation would be of significant benefit.
The need to deal with habitual and vexatious LIPs, however, should not divert attention from the
challenge relating to the rapidly increasing category of legitimate self-representing litigants grappling
with legal problems and disputes.
The access to justice challenge for unrepresented parties
It is difficult reliably to describe the volume or characteristics of LIPs seeking to vindicate or defend
rights and all but impossible to explain their motivations, objectives or experiences. No systematic
data about LIPs are collected or kept by HMCTS and very little descriptive or analytic academic
research has been carried out on LIPS in England and Wales. The lack of data appears to be global
rather than merely local, and worldwide concern about the growing prevalence of self-representation
is reflected in what appears to be a scrabble to construct reviews of studies, scholarly papers, and
available statistics. A reading of the reviews demonstrates the paucity of academic research and
official statistics. *C.J.Q. 433 101
Some indication of the volume of LIPs in English courts is provided by the only significant research
study carried out in selected courts in 2005.102 Looking at 2,500 first instance civil and family cases
(excluding Court of Appeal cases and small claims) Moorhead and Sefton found that unrepresented
litigants were common, particularly in family cases. Most adoption (75 per cent) and divorce (69 per
cent) cases involved one or more adult unrepresented litigants. Almost half (48 per cent) of Children
Act and injunction (47 per cent) cases involved adult unrepresented litigants, as did just under
one-third (31 per cent) of ancillary relief cases. For most case types, unrepresented litigants were
more likely to be defending than bringing the claim. It was relatively uncommon for both sides to be
unrepresented, but in divorce cases one-quarter involved unrepresented parties on both sides. Civil
cases had high levels of non-representation, particularly among those defending actions; some 85 per
cent of individual defendants in county court cases and 52 per cent of high court defendants were
unrepresented at some stage during their case. This suggests that thousands of people go
unrepresented every year in matters that can lead to insolvency, penury, and homelessness.
Other research studies show that LIPs have less money and may be less well educated than those
who receive representation.103 They are also likely to be younger.104 In family proceedings, men are
more likely to be unrepresented than women. Research also tells us that while there is more than one
reason for litigants appearing unrepresented, money generally heads the list. Studies in different parts
of the world consistently show that the cost of legal advice and declining availability of legal aid are
problematic and this is particularly so in family cases.105 Interviews with LIPs and court staff show
that, leaving aside difficult or obsessive litigants and some who have particularly negative views of the
legal profession, few individuals are unrepresented by choice and that the cost of legal advice and an
inability to access free advice are the primary reasons for non-representation.106
The most recently published overseas study of self-representing litigants involved interviews with 259
Page13
LIPs parties in three Canadian provinces.107 Set in the context of what Macfarlane refers to as
"extraordinary" numbers of self-representing parties, her interviews revealed, "by far the most
consistently cited reason for self-representation was the inability to afford to retain, or to continue to
retain, legal counsel."108 The access to justice implication of this is significant. *C.J.Q. 434
Adversarial procedures are designed to be operated by lawyers representing laypersons rather than
laypersons themselves.109 The law is often complex, legal procedure arcane, and legal professionals
have their own culture, vocabulary and practices. The Civil Justice Council Working Group Report on
LIPs justified its preference for the term "self-represented litigants" over "litigants in person" because,
it did not want to "imply a deficiency in the fact of self-representation".110 Based on existing evidence,
this seems frankly rather more optimistic than accurate. In advising parties and arguing cases,
lawyers and other skilled advocates enable the relevant law and facts to be identified and debated so
that outcomes are more legally accurate than those achieved when lay people try to represent
themselves. LIPs whose cases have merit might often lose because they do not know how to
communicate those merits effectively in the terms and through the means that courts and judges
understand. A recent meta-analysis of studies of representation in ordinary lower court and
administrative tribunal litigation in the United States concluded that giving more people access to
legal representation would radically change the outcomes of adjudicated civil cases. The potential
impact was notable when lawyers’ work was compared to that of non-lawyer advocates and,
apparently, "spectacular" when compared to lay people’s attempts at self-representation.111 Lawyers’
potential impact was found to be substantial even in fields of law that lawyers themselves did not
perceive to be particularly legally or factually complex.112
Although English research on how LIPs cope with court and tribunal proceedings is rather limited, one
or two studies provide insights into the challenges for the litigant, their opponent, and the court. A
study of the outcome of appeals in tribunals in 1989 concluded that, controlling for other factors,
represented parties were significantly more likely to win their appeal than unrepresented parties. The
study concluded that experienced representatives understand the law and complex regulations, they
investigate cases, they collect evidence, and they advocate effectively on their client’s behalf.113
Although unrepresented parties may have a good understanding of their case and concerns, they are
not always able to distinguish which issues are legally relevant, which aspects of their factual situation
are germane to the legal issues, and what constitutes appropriate evidence. They may have trouble
articulating their case, and in maintaining any degree of objectivity. They may be overwhelmed by the
procedural and oral demands of the tribunal or courtroom and find it hard to understand the purpose
of questions. *C.J.Q. 435 114
A later study of the experiences of white, black and minority ethnic tribunal applicants in 2006, found
marked differences in applicants’ ability to self-represent during proceedings. The study concluded
that the ability of some applicants to present their own case was so limited that "an advocate is not
merely helpful, but is necessary to the requirements of procedural fairness."115
In their 2005 study of litigants in person in English courts, Moorhead and Sefton concluded that
unrepresented litigants struggled with substantive law and procedure and that there was other
evidence of prejudice to their interests:
"Problems with substantive conceptualisation of disputes were only the beginning…Coping with
evidence was a major problem: knowing who to get witness statements from, failing to put their own
evidence in the form of a statement, knowing what documents to produce, knowing whether and how
they could introduce evidence late." 116
Similar research findings have been reported in studies in Australia, Canada and Hong Kong.117
Macfarlane’s recent study of LIPs in Canadian court presents a rather negative picture with many
parties finding the experience confusing, stressful, and dispiriting. She also reports that the "study
data is replete with SRL descriptions of negative experiences with judges, some of which suggest
basic incivility and rudeness."118
Some critics argue that the continuing opacity of law and legal procedure is maintained by a legal
profession keen to make work for itself. But, at least since the end of the 19th centrury there have
been repeated attempts to simplify court procedure (Judicature Acts; Woolf Reforms; removal of
Latin; simplification of rules of court) and these processes of reform have been led by judges and
lawyers committed to reducing complexity of procedure and rendering the courts more accessible to
litigants.
Page14
Challenges for the judiciary
The role of judges in dealing with unrepresented parties in court and tribunal proceedings is critical.
The Civil Justice Council Working Group on LIPs warned that judges must recognise the challenges
for self-represented litigants, understand the need for early assistance and take a lead in improving
the accessibility of judicial proceedings for LIPs.119 However, the task of assisting LIPs to advocate
their case and to compensate for lack of representation is formidable. Tribunals have taken the lead
here. With historic low levels of representation in many tribunals, accessible procedures have been
developed and tribunal judges have *C.J.Q. 436 consciously worked to develop an "enabling"
approach in hearings.120 Courts have not traditionally taken this sort of approach, other than in relation
to small claims.
Some of the studies of LIPs in English courts and tribunals have looked at the approaches adopted by
the judiciary in handling LIPs and judges’ own concerns about the challenges. There is evidence of
uncertainty among the judiciary about the boundaries of legitimate assistance. Anxiety about the
"limits" of judicial intervention exposes the problem inherent within the modern adversarial legal
system of reconciling responsiveness to the needs of users with traditional conceptions of judicial
neutrality and passivity. There is ambivalence about the extent to which it is reasonable and
appropriate to "enter the arena"121 or "lean over the bench" 122 to assist a party without representation.
Individual judges, increasingly faced with LIPs in court, grapple with finding their own personal
balance. Inevitably, this varies from judge to judge and from case to case, the problem being
particularly acute when a judge faces an imbalance of representation.
There are divergent views about what leeway to give LIPs. Two cases demonstrate this well. In the
McLibel appeal hearing, the Court of Appeal approved of the fact that the trial judge had shown the
defendants "considerable latitude" in the way they presented their case and, in particular, in the extent
to which he often allowed them to cross-examine witnesses at great length.123 The trial judge helped
the LIPs by reformulating questions for witnesses and by not insisting on the usual procedural
formalities, such as limiting the case to that pleaded. In its own judgment, the Court of Appeal took
note of the need to safeguard the applicants from their lack of legal skill. It conducted its own
research to supplement the submissions made by Steel and Morris and allowed them to introduce the
defence of fair comment at the appeal stage, even though they failed to raise it at first instance.124
In contrast, the Court of Appeal in October 2012 took a tougher line in relation to a LIP who had
missed a deadline—albeit with a LIP who seems to have been rather persistent.125 Accepting that
there might be facts and circumstances in relation to a litigant in person that might be taken into
account if they missed a deadline, in Kay L.J.’s judgment, those factors would only operate "close to
the margins."126 He said that an opponent of a litigant in person is entitled to assume finality without
expecting excessive indulgence to be extended to the litigant in person." In Kay L.J.’s view, the trial
judge had gone too far in making allowances for a litigant in person.
In a recent appeal dealing with alleged procedural impropriety in the handling of a hearing in the High
Court of a dispute between two unrepresented parties, Ward L.J. delivered what amounts to a judicial
lament concerning the challenges for the judiciary in managing LIPs: *C.J.Q. 437
"What I find so depressing is that the case highlights the difficulties increasingly encountered by the
judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed.
The first is how to bring order to the chaos which litigants in person invariably — and wholly
understandably — manage to create in putting forward their claims and defences. Judges should not
have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be
resolved…. The expense of three judges of the Court of Appeal dealing with this kind of appeal is
enormous. The consequences by way of delay of other appeals which need to be heard are
unquantifiable. The appeal would certainly never have occurred if the litigants had been represented.
With more and more self-represented litigants, this problem is not going to go away." 127
Whatever Ward L.J.’s assessment of the situation, in future the judiciary will be required to engage far
more with the management of cases involving LIPs. The final section of this article focuses on how
this is to be done and what other measures are required to facilitate access the justice system and to
avoid abuse of process.
Meeting the challenge of LIPs in the post-LASPO world
We are moving into a new era of diminished support for citizens seeking to vindicate or defend their
Page15
rights in civil, family and tribunal proceedings. To a significant extent, we are following in the footsteps
of other jurisdictions that have historically provided modest or minimal provision for access to justice.
That we are beginning the task of developing measures to support self-representing parties
considerably later than elsewhere gives us the opportunity to learn from the experience of others.
It is clear from our own reading of the situation and the conclusions of other jurisdictions that a
comprehensive strategy is required. The CJC working group recommended a combined approach
involving the provision of information, advice, and access to early professional help together with
simplification and demystification of court procedure.128 This holistic strategy must be correct—attack
the problem from all sides—but delivering access to justice for LIPs while restraining abuse of
process is a tall order. A number of measures are already being considered. Others are not.
Developing an evidence base
Valid and reliable data collection must be a central element in any comprehensive strategy for
transforming the way that the justice system accommodates unrepresented parties. This is crucial in
order better to understand both access to justice and abuse of process issues and to assess the
efficacy of any proposed solutions. Information of different types should be collected systematically
and be capable of linkage. We need consistent and practical methods of categorising LIPs. We need
information about demographic and other personal characteristics, *C.J.Q. 438 about the type of
case in which they were involved and whether they were bringing or defending the action. We need
information about the court or tribunal in which the case was dealt with and the outcome of the case,
including for example interlocutory orders, civil restraint orders, and any subsequent appeals and
outcomes.
Had this information been collected over the past decade we might now be able to quantify the
increase, if any, in the volume of LIPs, to describe the characteristics of LIPs in different proceedings,
and the extent to which lack of representation appears to be associated with increased length of
hearings or prejudice in outcome. We would also be able to give a more coherent account of the
volume and nature of persistent or vexatious litigation and to assess the impact of measures to curb
abuse of court process.
Information, advice and advocacy
There is a wide range of self-represented litigants and a wide range of cases. Some LIPs with
well-targeted information and advice and well-trained judges will be in a reasonable position to
attempt to vindicate their legal rights. The CJC recommendations place considerable emphasis on
improving the quality and availability of information to LIPs and this is to be welcomed.129 The
excellent new "Going to Court" nutshell guides produced in response to the CJC recommendations by
the RCJ CAB will undoubtedly be helpful to confident, literate LIPs. But that is only one section of
potential litigants and in any case, rather tellingly, both leaflets end with a disclaimer that says: "The
law is complicated. It is always best to get advice. This guide is not meant as a substitute for legal
advice." Moreover, when LIPs have had information from the web, from forms, and hand-outs, they
cannot be deemed by the court to have received skilled advice about the existence and merits of their
potential claims or defences, or to have had the benefit of advice as to various courses of action.130
Most people contemplating involvement in legal proceedings need skilled advice and many ultimately
need representation because of the complexity of the factual or legal issues involved in their cases, or
because of their lack of the basic skills needed to present their cases to a court.
How, then, is early constructive advice and representation to be offered in a climate of scarce legal
aid? Advice agencies and lawyers through their pro bono activities already contribute a considerable
amount of support to LIPs. The challenge in the future will be to maintain and, if possible, enhance
supply and improve co-ordination. In particular, there is a need to provide more early advice on the
merits of cases in order to give realistic guidance to those with weak cases and to help those with
strong cases to prepare. University Law Schools represent an important additional source of advice
and advocacy for LIPs and many students *C.J.Q. 439 are involved in clinical legal programmes. In
the end, however, the pro bono activities of lawyers, advice agencies and university legal clinics can
only seek to ameliorate what will inevitably be a deterioration in effective access to justice.
Procedural modifications
Page16
Better provision of information and advice to LIPs needs to be supported by a longer-term project of
simplifying court procedure, modifying the adversarial process and reducing the complexity of
substantive law. It has been accepted in the United States that simplifying substantive law and
procedure can reduce the need for comprehensive legal advice and assistance and can create the
potential for information systems to overcome some of the problems facing some unrepresented
litigants.131 "The more complicated the substantive law, procedures and forms, the more help
unrepresented litigants will need."132
Focusing on the need to adapt court procedures to support LIPs, the CJC working group report
envisaged the possibility of offering LIPs a different type of judicial dispute resolution forum. This
issue was also directly addressed in the Judicial Working Group on LIPs report. Given the on-going
reforms to the family justice system133 and the well-developed enabling procedures of tribunals, the
Working Group felt that the priority for procedural change was the operation of the Civil Procedure
Rules. The report, therefore, proposes alternative ways of modifying procedure to allow a more
inquisitorial approach in court when proceedings involve one or more LIPs. For example, the
introduction of a procedural rule that triggers a variation to normal procedure, or a specific power
allowing the court to direct that proceedings are conducted by way of a more inquisitorial process
when LIPs are involved in proceedings. 134
The report also deals with the issue of "McKenzie friends".135 Seeking to relax the restrictions on
rights of audience, the Working Group recommended that consideration should be given to following
the Scottish example where rules providing for reasonable assistance, rights of audience, and the
right to conduct litigation were introduced in April 2013. The Scottish Courts Review, which *C.J.Q.
440 reported in 2009,136 considered the possibility of extending rights of audience to lay advocates as
a means of improving access to justice for "party litigants". Although they concluded that in general it
would not be appropriate to extend rights of audience generally to those without proper qualifications,
they recognised that there might be "exceptional circumstances" where it would be justified to allow a
McKenzie friend to assist a LIP and address the court. They therefore recommended that
"a person without a right of audience should be entitled to address the court on behalf of a party
litigant, but only in circumstances where the court considers that such representation would help it."
137
Following further consideration and consultation,138 new Sheriff Court and Court of Session Rules
came into force on April 4, 2013 permitting lay representatives to address the court.139 The Rules
provide that:
"In any proceedings… the sheriff may, on the request of a party litigant, permit a named individual (a
‘lay representative’) to appear, along with the litigant, at a specified hearing for the purpose of making
oral submissions on behalf of the litigant at that hearing." 140
It is a condition that the lay representative does not receive directly or indirectly any remuneration for
the assistance.141
Adopting such an approach could be beneficial to certain groups of LIPs. The evidence of studies of
the experience and performance of LIPs in court and tribunal proceedings referred to earlier shows
that LIPs may have difficulty in understanding court procedure and rules, in expressing themselves,
and in advocating in their own cause. The research also shows that a McKenzie friend or lay adviser
who is permitted to address the court can make a significant difference. There is considerable
experience of the use of lay representatives in tribunal proceedings where the rules of most tribunals
permit parties to appoint a representative—whether legal or not—to represent the party in tribunal
proceedings.142 Under tribunal rules, with minor exceptions, anything permitted or required to be done
by a party may be done by the representative of that party, including addressing the tribunal on the
party’s behalf.143 Many tribunals deal with complex legal rules and cases of substantial value. In
considering whether to relax the restrictions on rights of audience of McKenzie friends in court, the
experience of tribunals should be reviewed. *C.J.Q. 441
The judicial role
It is clear that the role of the judiciary is a critical component in delivering effective access to justice
for LIPs. With sources of advice and assistance severely constrained, there is now no alternative to
adjusting the adversarial process and re-imagining the role of the judge. Fortunately, it seems that the
judiciary are considering how to grasp this particular nettle. In addition to recommendations on
Page17
procedural change, the Judicial Working Group on LIPs focused on the need for the judiciary to adapt
their approach when dealing with LIPs. The report makes a number of important recommendations
that distinguish between measures to facilitate effective access to justice and those to control abuse
of process.
To control abuse of court process the Working Group recommends that judges deal "proactively and
robustly" with vexatious litigants. This recommendation does not distinguish between different
categories of troublesome litigants and the report argues, without evidence, that the number is "very
small".144 There is an urgent need for better tracking of cases of repeat, persistent, habitual and
vexatious litigation. If this were accomplished it would be possible to undertake some analysis of the
course of claims and detail the characteristics of different categories of persistent litigants. This would
support early identification so that restraining measures could be confidently imposed before
significant court resources have been expended. A more informed and nuanced understanding of the
motivations and objectives of habitual litigants might assist in diverting cases to alternative resolution
routes or methods of redress and closure. It is difficult to find instances in other jurisdictions of the
development of imaginative measures to tackle different types of abuse of process that might provide
a lead. This is an astonishingly under-researched area, where some theoretical development and the
construction of self-representing litigant typologies would be invaluable.
To facilitate access to justice, the Judicial Working Group suggests that judges adopt a "flexible and
interventionist" approach to proceedings involving LIPs.145 Recognising the challenges that face many
LIPs the report emphasises the role of the judge in ensuring that the court or tribunal has the
information and evidence it requires to make a fair adjudication of the case. However, the report
argues that the judiciary have "a fine line to tread in giving legitimate assistance to a litigant in person
without eroding the confidence of other parties in their impartiality".146 This is a particular problem
when there is an imbalance of representation and when judges are anxious not to give the impression
that they are paying more attention to LIPs or allowing them more latitude. Indeed, the discussion in
the report is sprinkled with references to "fine lines" and "appropriate leeway" depending on the
"circumstances of each case".147 Although the report recognises the need for flexibility on legal points
and procedural issues, it warns that judges cannot advise procedural steps: "Judges may reasonably
make suggestions that would help an efficient trial, but not to the extent they could be seen to be
assisting in the presentation of a litigant’s case."148 While the thrust of this section of the report is
*C.J.Q. 442 designed to be helpful, ultimately it constitutes a re-statement of the central dilemma for
the judiciary in adversarial proceedings. Judges throughout the common law world, it seems, are
wrestling with the essential question of how a judge can deal with self-represented litigants in the
courtroom without departing from the judicial role as a neutral, impartial decision maker:
"When a party is unable to present its case to the court, how can the judge facilitate the resolution of
the matter without in effect becoming the party’s lawyer—…If the judge does not intervene on behalf
of the unrepresented litigant, the party may be unable to present evidence supporting its position and
manifest injustice may result. If the judge does intervene, he or she may be violating the duty of
impartiality." 149
Adopting a more inquisitorial or "enabling" approach requires excellent communication and
questioning skills, as well as considerable pre-hearing preparation on the part of the judge.
Consideration also needs to be given to the circumstances in which a more inquisitorial approach is
indicated. Will it apply in all proceedings involving a LIP? If so, how should the judiciary adapt to the
challenge of an imbalance of representation? While it is relatively straightforward to articulate an
aspiration that the judiciary develop interventionist or enabling skills to assist LIPs, the detail of
appropriate conduct in a range of circumstances involving LIPs remains to be worked out.
There is a need to develop clear principles for the approach to be adopted that will support confident
and relatively consistent practice among the judiciary. It is interesting that in the United States, where
they have been dealing with large numbers of LIPs for some time, this question remains the subject of
debate. In an excellent review and analysis of US case law, Albrecht et al. argue that trial judges
there have no common understanding of "the ethical standards, case law, or practical techniques to
use to ensure that justice is done in their courtrooms." Nor do they seem to be clear about when they
might be departing from acceptable practice in "leaning over the bench to assist a floundering
unrepresented party."150
Facilitating the development of this kind of common understanding and practice is a pressing training
issue for the judiciary of England and Wales. There needs to be a re-statement of judicial ethical
duties in relation to the handling of unrepresented parties, and judges need to acquire the necessary
Page18
skills and abilities effectively to manage proceedings involving LIPs. Agreement about the principles
that should be guiding judicial behaviour and discretion will support greater confidence and the
development of more consistent practice. This requires leadership from the Court of Appeal. The case
law dealing with judicial conduct in relation to unrepresented parties in this jurisdiction, and to some
extent elsewhere, presents a confusing lack of guidance.151 A helpful model is provided in the bench
*C.J.Q. 443 guide developed for the California judiciary.152 This makes clear ultimate responsibility
for ensuring cases are dealt with fairly and justly is with the judge:
"Fulfilling that responsibility may require that the court, while remaining neutral in consideration of the
merits, assume more than a merely passive role in assuring that the merits are adequately
presented….Where litigants represent themselves, the court in the interest of fair determination of the
merits should ask such questions and suggest the production of such evidence as may be necessary
to supplement or clarify the litigants’ presentation of the case." 153
The California case law cited in the bench guide seems to indicate judges may liberally construe filed
documents and overlook technical mistakes; give self-representing parties opportunities to amend
documents; assist parties to settle their claim; explain how to introduce evidence and how to object to
the introduction of evidence.154
Developing such guidance and judicial skills ought to be a significant training opportunity for the
Judicial College. Indeed, the Judicial Working Group on LIPs recommended that the Judicial College
should provide training on handling litigants in person and develop a "litigants in person toolkit" for
judges.155 But with the length of courses being cut in order to meet budgetary constraints, it is unclear
how much resource the College will be able to devote to helping the courts’ judiciary adapt to a more
active, inquisitive and enabling approach in court. Nor is it clear what priority this will be given among
competing areas of judicial training needs. There are opportunities to learn from the experience of
District Judges who have the greatest court experience of handling unrepresented parties in small
claims, and from tribunals, where there is a successful tradition of training judges to develop an
"enabling" approach in dealing with unrepresented parties. This should be high on the judicial training
agenda, but will the resources be made available to do it? Lady Hale pithily summed up the issue last
year in her lecture considering the impact of changes to legal aid:
"The problem, as I see it, is that in order to avoid spending money on lawyers you have to be
prepared to spend money on the decision-makers — give them the right training, the right expertise,
the right resources, and the right premises to be able to do the job." 156
Conclusion
Reviewing the experience of the growing number of LIPs in courts and tribunals around the
adversarial common law world has shown that the challenges for parties, the judiciary and the justice
system are not unique to our jurisdiction, nor are there *C.J.Q. 444 easy answers. The review has
demonstrated that there is a general shortage of information about the prevalence, characteristics
and motivation of LIPs in common law jurisdictions. There is also a dearth of rigorous evidence about
how LIPs manage in court and tribunal proceedings and the efficacy of various measures designed to
support access to justice for LIPs.
What seems to be clear is that mitigating the difficulties facing LIPs in court and tribunal proceedings
requires a comprehensive approach that addresses the need for information and advice about
redress systems, simplification of procedure, relaxation of adversarial processes, and significant
modification of the traditional judicial role supported by well-targeted training. The recent reports by
the Civil Justice Council and the Judicial Working Group on LIPs have identified many of the
challenges involved in assisting LIPs to achieve effective access to justice and suggested a range of
measures that might be of assistance. However, they both recognise that one size will not fit all
circumstances. It is therefore necessary to tackle some of the complexities involved in tailoring
measures aimed at amelioration to different types of LIPs, varying configurations of representation,
and diverse legal proceedings.
In order to do this we need to develop a typology of LIPs and representation configuration. For
example, "paradigm" one-shotter individual LIPs will have varying degrees of education and general
competence. Those with high levels of competence and determination will benefit most from good
quality, easily accessible sources of information and advice. One-shotter individual LIPs with lower
levels of education or general competence, or those for whom English is not their first language, may
Page19
gain less from information and advice and require a greater degree of assistance. With both capable
and less capable LIPs, should the approach of the judge vary depending on whether the opposing
litigant is represented?
Our ability to develop a LIP typology is constrained by lack of quantitative and qualitative information.
We need useful, robust data from courts and tribunals about the characteristics of LIPs, and we need
empirical research to evaluate the efficacy of different measures designed to increase access to
justice and close down abuse of process. The focus of future research and experimentation should be
on understanding what procedural modifications and changes in judicial behaviour are most effective
in achieving these objectives.
The English justice system in the twentieth century had a well-deserved global reputation for its
quality and commitment to equal access to accurate judicial determination on the merits. In the
absence of civil legal aid and reduced free advice services there is an urgent need to facilitate
effective access to courts whose purpose is to serve all members of the public in the peaceful
resolution of disputes. The challenge now is to make our procedures more accessible while
maintaining the quality and values that have characterised our system of justice. Litigants with
meritorious cases are entitled to substantively just and consistent determinations on the law and
facts, whether or not they are in a position to retain legal representation. It is critical to address these
challenges or face the prospect that increasingly citizens with justified legal claims will abandon their
rights and relinquish the courts to determined "querulous" litigants. Or, more worryingly, perhaps they
will turn to the types of self-help measures that the public justice system was intended to replace.
Professor Dame Hazel Genn
Dean and Co-Director of the UCL Judicial Institute, Faculty of Laws UCL
C.J.Q. 2013, 32(4), 411-444
*.
This article is based on the 2012 Atkin Memorial Lecture delivered by the author at the Reform Club in London on
October 30, 2012.
1.
McCartney v Mills McCartney [2008] EWHC 401 (Fam); [2008] 1 F.L.R. 1508 at [15]-[16].
2.
These quotes were repeated in several newspapers and online on the day. See for example,
http://www.telegraph.co.uk/news/uknews/1581900/Full-transcript-of-Heather-Millss-statement.html [Accessed August 1,
2013]. Although Heather Mills represented herself at the hearing, she had previously been advised by the law firm,
Mishcon de Reya. She said appearing without representation had saved her £600,000.
3.
There has been a fair bit of discussion about the appropriate terminology to be used for self-representing parties or
litigants in person. The Civil Justice Council Working Party on Access to Justice for Litigants in Person recommended in
2011 that the appropriate terminology should be "self-representing litigants" or "SRLs" to avoid the appearance that lack
of representation implied a deficiency. However, in March 2013 the Master of the Rolls determined that to avoid
confusion, in future in all civil, criminal and family proceedings the term "litigant in person" should be used. His
reasoning is that the term is used in statute and by Government; that it is understood and well known by lawyers and
the public while the term SRL is unclear in scope. Practice Guidance on Terminology for Litigants in Person. Lord
Dyson
M.R.,
March
2013,
available
at:
http://www.judiciary.gov.uk/publications-and-reports/guidance/2013/mor-guidance-terminology-lips [Accessed August 1,
2013]. In the USA LIPs are referred to as "pro se" litigants. In Scotland, they are referred to as "party litigants".
4.
McDonald’s Corporation, McDonald’s Restaurants Limited v Helen Marie Steel and David Morris [1997] EWHC QB 366
(19th June, 1997).
5.
Roger Smith "Legal Aid in England and Wales: Entering the Endgame", ILAG Newsletter May 2011, available at:
http://www.ilagnet.org/newsletterstories.php?id=37 [Accessed September 6, 2013]; see also Roger Smith, "After the
Act: what future for legal aid?" Tom Sargant memorial annual lecture 2012, London, Tuesday October 26 2012,
available at http://www.justice.org.uk/data/files/resources/332/After-the-Act-what-future-for-legal-aid.pdf [Accessed
September 6, 2013]; also Steve Hynes, Austerity Justice, (London: Legal Action Group, 2012), Ch.4.
6.
Legal Aid and Advice Bill 1948: Summary of the Proposed New Service, para.4, presented to Parliament by the Lord
High Chancellor (Nov. 1948) Cmd.7563 of 1948.
7.
It has been argued that the original design of the scheme was rather less expansive and that it was only with the
expansion during the 1970s that the scheme really achieved the Rushcliffe ambitions. See Smith "Legal Aid in England
and Wales: Entering the Endgame", ILAG Newsletter May 2011, and Joshua Rozenberg, The Search for Justice,
(London: Hodder & Stoughton, 1994) quoted in Hynes, Austerity Justice (2012).
Page20
8.
United States Institute for Peace, Guiding Principles for Stabilization and Reconstruction, Ch.7 The Rule of Law,
available at: http://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/rule-law [Accessed
August 1, 2013].
9.
David Luban, Lawyers and Justice: An Ethical Study, (Princeton: Princeton University Press, 1988), p.244.
10.
For example, Legal Aid Act 1988; Access to Justice Act 1999; Legal Aid, Sentencing and Punishment of Offenders Act
2012; Lord Chancellor’s Department, Legal Aid - Targeting Need: the future of publicly funded help in solving legal
problems and disputes in England and Wales (May 1995), Cm.2854; Lord Chancellor’s Dept, Striking the Balance: The
Future of Legal Aid in England and Wales (1996), Cm.3305; Department for Constitutional Affairs, A Fairer Deal for
Legal Aid (July 2005), Cm.6591; Lord Carter’s Review of Legal Aid Procurement 2006; Department for Constitutional
Affairs and the Legal Services Commission, Legal Aid: a sustainable future Consultation Paper CP 13/06; Department
for Constitutional Affairs and the Legal Services Commission, Legal Aid Reform: the Way Ahead (2006), Cm.6993;
Ministry of Justice, Proposals for the Reform of Legal Aid in England and Wale, Consultation Paper CP12/10
(November 2010), Cm.7967.
11.
Lord Chancellor’s Department, Legal Aid - Targeting Need: the future of publicly funded help in solving legal problems
and disputes in England and Wales (May 1995), Cm.2854; Lord Chancellor’s Dept, Striking the Balance: The Future of
Legal Aid in England and Wales (1996), Cm.3305.
12.
See for example the Daily Telegraph, Wednesday April 29 1998 containing an article with the headline "Irvine Names
the ‘Fat Cats’ of Legal Aid". The article concerned information provided to Parliament by the then Lord Chancellor, Lord
Irvine of Lairg. It states: "Details of the largest earnings from legal aid were given to Parliament as part of what was
seen as a campaign by ministers to justify their far-reaching plans to reform the system."
13.
Community Legal Service Fund Funding Priorities Direction by the Lord Chancellor under s.6(1) of the Access to
Justice Act 1999 concerning the priorities that the Legal Service Commission should set for funding services as part of
the Community Legal Service.
14.
See discussion in Hazel Genn, Judging Civil Justice, (Cambridge University Press, 2009), pp.40–41; and Hynes,
Austerity Justice (2012), Ch.5.
15.
The Fairer Deal for Legal Aid consultation paper in 2005 acknowledges a need to redress the balance. "Like all areas of
public expenditure, legal aid has to live within an overall budget…The growth in criminal spending has meant we have
had to reduce the spending on civil, particularly on legal help, and family legal aid, which is undesirable for society as a
whole…"Department for Constitutional Affairs, A Fairer Deal for Legal Aid (July 2005), Cm.6591, para 2.17, p.13.
16.
"[Legal aid] has encouraged people to bring their problems before the courts too readily, even sometimes when the
courts are not well placed to provide the best solutions. This has led to the availability of taxpayer funding for
unnecessary litigation." Ministry of Justice, Proposals for the Reform of Legal Aid in England and Wale, Consultation
Paper CP12/10 (November 2010), Cm.7967.
17.
Ministry of Justice, Proposals for the Reform of Legal Aid in England and Wale, Consultation Paper CP12/10
(November 2010), Cm.7967, para.2.11, p.16.
18.
A notable example being Lady Hale, Justice of the UK Supreme Court, "Equal Access To Justice In The Big Society",
The Sir Henry Hodge Memorial Lecture, 2011, available at: http://www.supremecourt.gov.uk/docs/speech_110627.pdf
[Accessed August 1, 2013].
19.
In the same month, the Ministry of Justice issued a further consultation paper, Transforming Legal Aid: Delivering a
More Credible and Efficient System. (Ministry of Justice, April 2013). The main thrust of the paper is to introduce
competitive tendering among criminal defence providers. At the same time further changes are proposed to the ambit of
civil legal aid. These include residence requirements for civil legal aid; limitation of legal aid in judicial review cases to
those where permission has been granted; funding for civil cases dependant on 50 per cent chance of success.
20.
Lord McNally, Minister of State for Justice, in an unpublished speech given at UCL Faculty of Laws on March 14, 2013
at the launch of the UCL Centre for Access to Justice.
21.
Roger Smith, "After the Act: what future for legal aid?" Tom Sargant memorial annual lecture 2012, London, Tuesday
October
16,
2012,
available
at:
http://www.justice.org.uk/data/files/resources/332/After-the-Act-what-future-for-legal-aid.pdf [Accessed August 1, 2013].
22.
Francis Regan, Alan Paterson, Tamara Goriely and Don Fleming (Eds) The Transformation of Legal Aid: Comparative
and Historical Studies, 1999, Oxford University Press, pp 2–3. See also the international discussion papers on the
International Legal Aid Group website http://www.ilagnet.org/papers.php [Accessed August 1, 2013].
23.
Ministry of Justice, Transforming Legal Aid: Delivering A More Credible and Efficient System, Consultation Paper
CP14/2013, Annex K, 5.10.2
24.
Ministry of Justice, Reform of Legal Aid in England and Wales: Equality Impact Assessment (EIA), London (July 2012),
p.125,
available
at:
http://www.justice.gov.uk/legislation/bills-and-acts/acts/legal-aid-and-sentencing-act/laspo-background-information
[Accessed August 1, 2013].
25.
The number losing assistance in different categories are as follows: Family 232,500; Debt 105,050; Education 2,870;
Page21
Employment 24,070; Housing 53,200; Welfare benefits 135,000; Immigration 53,290; Other 17,020.
26.
James Sandbach, Out Of Scope, Out Of Mind: Who Really Loses From Legal Aid Reform, (London Citizens Advice,
2012), p.1.
27.
See
for
example:
http://www.civilsociety.co.uk/finance/news/content/14662/legal_aid_cuts_spark_redundancies_at_citizens_advice_bureaux
[Accessed
August
1,
2013];
closures
of
CABx
in
Birmingham,
see
http://www.birminghammail.co.uk/news/local-news/birminghams-labour-leader-calls-for-coalition-147404
[Accessed
August 1, 2013].
28.
See http://www.guardian.co.uk/law/2013/mar/11/legal-aid-cuts-shelter-offices [Accessed August 1, 2013].
29.
See
http://www.leaderlive.co.uk/news/121355/flintshire-cab-chief-s-worry-as-axe-falls-on-legal-aid-service.aspx
[Accessed August 1, 2013].
30.
Natalie Byrom, The State of the Sector: The impact of cuts to civil legal aid on practitioners and their clients. A report by
the Centre for Human Rights in Practice, University of Warwick in association with Ilegal, April 2013, available at:
http://www2.warwick.ac.uk/fac/soc/law/chrp/projects/legalaidcuts/153064_statesector_report-final.pdf [Accessed August
1, 2013].
31.
The consequences can range from significant to catastrophic, ultimately creating a cascade of difficulties that place an
additional strain on public resources. For examples of problem clusters and the cascade effect, see Hazel Genn, Paths
to Justice: What People do and think about going to law (Oxford, Hart Publishing, 1999), especially pp.31-36.
32.
Findings from the English and Welsh Civil and Social Justice Surveys, Pascoe Pleasence, Nigel Balmer, Ash Patel,
Andrew Cleary, Tom Huskinson, Toby Cotton, English and Welsh Civil and Social Justice Panel Survey 2010, Legal
Services
Research
Commission,
2011,
Ch.3,
available
at:
http://www.justice.gov.uk/downloads/publications/research-and-analysis/lsrc/2011/civil-justice-wave1-report.pdf
[Accessed August 1, 2013]; See also Nigel Balmer, Summary Findings of Wave 2 of the English and Welsh Civil and
Social Justice Panel Survey, Legal Services Commission (2013), Section 3, p.33, available at:
http://www.justice.gov.uk/downloads/publications/research-and-analysis/lsrc/lsrc-report-csjps-wave-2.pdf
[Accessed
August 1, 2013].
33.
Civil Justice Council, Access to Justice for Litigants in Person (November 2011) available at:
http://www.judiciary.gov.uk/JCO%2fDocuments%2fCJC%2fPublications%2fCJC+papers%2fCivil+Justice+Council+-+Report+on+Access+to+
[Accessed August 1, 2013].
34.
Civil Justice Council, Access to Justice for Litigants in Person (November 2011), p.8.
35.
Civil Justice Council, Access to Justice for Litigants in Person (November 2011), p.8.
36.
Mr Justice Ryder, Judicial Proposals for the Modernisation of Family Justice, (Judiciary of England and Wales, July
2012),
para.54,
p.12,
available
at:
http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/ryderj_recommendations_final.pdf [Accessed August
1, 2013].
37.
Judicial Working Group on Litigants in Person Report (July 2013). Chairman Mr Justice Hickinbottom, available at:
http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf [Accessed August 1, 2013].
38.
This failing is not limited to HMCTS. A recent review of data collection on LIPs in Australia concluded that although
some data were being collected by different parts of the justice system "there is little consistency in nomenclature nor a
systematic approach to data mining or data presentation across databases. Similarly, information exchange about the
success of SRL programs is limited." Elizabeth Richardson, Tania Sourdin and Nerida Wallace, Self-Represented
Litigants: Gathering Useful Information, Final Report — June 2012, Australian Centre for Justice Innovation Civil Justice
Research Online, available at: http://www.civiljustice.info/cgi/viewcontent.cgi?article=1001&context=srl [Accessed
August 1, 2013].
39.
Kim Williams, Litigants in person: a literature review — Research Summary 2/11, Ministry of Justice, (London June
2011). The CJC Working Group on LIPs commented that the absence of any major official study on current levels of
self-representation is a serious shortcoming and that the review of academic research undertaken by the MOJ was
hardly a substitute for an effective impact assessment of the LASPO changes. Civil Justice Council, Access to Justice
for Litigants in Person (November 2011), paras 34–35, p.17.
40.
Ministry of Justice, Court Statistics Quarterly October to December 2012: Statistics Bulletin (March 2013), available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/198246/court-stats-quarterly-q4-2012.pdf
[Accessed August 1, 2013].
41.
The notes on data explain the weakness as follows: "Legal representation data is held in the FamilyMan system. The
data indicates whether or not the applicant(s) and respondent(s) in a case had a legal representative… However, the
representation data held may be incomplete, and may not reflect any changes that occur as cases progress. The
absence of recorded representation in the dataset therefore does not necessarily indicate a self-represented party (or
‘litigant in person’). It is also important to note that whether or not a case is contested may affect the timeliness of the
case, and also the legal representation status." Ministry of Justice, Court Statistics Quarterly October to December
2012: Statistics Bulletin (March 2013), p.40.
Page22
42.
Personal Support Unit, Annual Report for the year ended 31st March 2012, p.4. The report also notes that 29% of PSU
clients speak English as a second language, 32% have a serious health complaint, 13% describe themselves as
disabled and 56% belong to an ethnic minority. RCJ staff estimate that 40% have some form of mental health problem,
available at: http://thepsu.org/wp-content/uploads/2010/01/PSU-Annual-Report-20122.pdf [Accessed August 1, 2013].
43.
Personal Support Unit, Annual Report for 2010/11, 10th Anniversary edition, p.6, available
http://thepsu.org/wp-content/uploads/2010/01/PSU-Annual-Report-2011.pdf [Accessed August 1, 2013].
44.
This section draws on an excellent PhD thesis by Rabea Assy entitled "The Right to Litigate in Person", University
College Oxford (2011). See also Assy’s article, "Revisiting the right to self-representation in civil proceedings" (2011) 30
C.J.Q. 267.
45.
See the discussion of the right of a party to civil proceedings to act in person and address the court in Gregory v Turner
[2003] EWCA Civ 183; [2003] 1 W.L.R. 1149.
46.
The general right is now governed by the Legal Services Act 2007 Sch.3 paras 1 and 2 which replaces ss.27 and 28 of
the Courts and Legal Service Act 1990. Children and other protected parties, however, must have a litigation friend to
conduct proceedings on their behalf: CPR Pt 21.
47.
US Supreme Court Faretta v California 422 U.S. 806 (1975), No.73-5772.
48.
The right to act in person (pro se) in civil actions in US federal courts is guaranteed by 28 U.S.C. §1654, which derives
directly from the Judiciary Act of 1789 s.35. This provides that "in all the Courts of the United States the parties may
plead and manage their own causes personally or by the assistance of such counsel or attornies at law as by the rules
of the said Courts respectively shall be permitted to manage and conduct causes therein." See the helpful discussion of
the history of the right to act in person in civil proceedings by Cardamone J. in Iannaccone v Law 142 F.3d 553 (2d Cir.
1998).
49.
In Hong Kong, a right to self-representation is guaranteed by Rules of the High Court Order 5 r.6, see Camille Cameron
and Elsa Kelly, "Litigants In Person In Civil Proceedings: Part I" (2002) 32 Hong Kong L.J. 313, 314.
50.
See s.78 of the German Code of Civil Procedure (ZPO): "78(1) The parties to disputes before the regional courts
(Landgerichte, LG) and the higher regional courts (Oberlandesgerichte, OLG) must be represented by an attorney.
Where, based on section 8 of the Introductory Law of the Courts Constitution Act (Einführungsgesetz zum
Gerichtsverfassungsgesetz), a Land has established a supreme court for its territory, the parties to a dispute must
likewise be represented by an attorney before this court as well. In proceedings before the Federal Court of Justice
(Bundesgerichtshof, BGH), the parties to the dispute must be represented by an attorney admitted to practice before
said court". See also Marianne Roth, "Towards procedural economy: reduction of duration and costs of civil litigation in
Germany" (2001) 20 C.J.Q. 102.
51.
Nina Ingwer Van Wormer, "Help at Your Fingertips: A Twenty-First Century Response to the Pro Se Phenomenon"
(2007) 60 Vand. L. Rev. 983, 986–987.
52.
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] A.C. 909, 977 (Lord Diplock) (
Bremer).
53.
In a splendid alternative analysis of the right to self-representation, Cerruti argues that the attachment to the principle of
a right to self-representation, which has no recognition in civil law jurisdictions, derives from a misreading of the history
of common law criminal trial procedures. He argues that historically, the purpose of self-representation in criminal trials
was to promote self-incrimination. "A certain unreconstructed mystique has shielded the right of self-representation over
the years. The iconic image it presents is one of a simple citizen…pleading for simple justice before a jury of his peers.
It is a portrait of direct democracy at work, a self-represented individual throwing off the formal trappings of the state
and its lawyers to present an unmediated narrative in the courtroom…Unfortunately, this mystique presents an
iconography that is not well grounded in either an historical or a normative truth… It…reverses and subverts the reality
of the almost entirely negative historical experience with the practice of self-representation in the adversarial setting of
the common law jury trial…The purpose of self-representation was to promote self-incrimination, other rights of fair trial
or representation." Eugene Cerruti, "Self-Representation in The International Arena: Removing A False Right of
Spectacle" (2008–2009) 40 Geo. J. Int’l L. 919, 921–923.
54.
Assy, "Revisiting the right to self-representation in civil proceedings" (2011) 30 C.J.Q. 267, 273.
55.
Airey v Ireland (A/32) (1979–80) 2 E.H.R.R. 305.
56.
"[W]hilst Article 6 para. 1 (art. 6-1) guarantees to litigants an effective right of access to the courts for the determination
of their "civil rights and obligations", it leaves to the State a free choice of the means to be used towards this end. The
institution of a legal aid scheme … constitutes one of those means but there are others such as, for example, a
simplification of procedure." Airey (1979–80) 2 E.H.R.R. 305 at [26].
57.
Section 10 of LASPO provides that "exceptional funding" might be granted for cases that are now out of scope of the
legal aid system. An exceptional case determination might be made, on application to the new director of legal aid
casework, where failure would be a breach of convention rights under the Human Rights Act 1998, or any rights of the
individual to the provision of legal services that are enforceable EU rights.
58.
Ministry of Justice, Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests) (March 2013), para.18, available
at: http://www.justice.gov.uk/downloads/legal-aid/funding-code/chancellors-guide-exceptional-funding-non-inquests.pdf
at:
Page23
[Accessed August 1, 2013].
59.
Stephan Landsman, "A Brief Survey Of The Development Of The Adversary System" (1983) 44 Ohio St L.J. 713, 714.
60.
Neutrality and passivity are not the same thing. For a discussion of the issues see R. Zorza, "The Disconnect Between
the Requirements of Judicial Neutrality and Those of the Appearance of Neutrality When Parties Appear Pro Se:
Causes, Solutions, Recommendations, and Implications" (2004) 17 Georgetown Journal of Legal Ethics 423, 428; see
also Richard Moorhead, "The Passive Arbiter: Litigants in Person and the Challenge to Neutrality" (2007) 16 Social and
Legal Studies 405, 406; William Lucy, "The Possibility of Impartiality" (2005) 25(1) Oxford Journal of Legal Studies 3.
61.
E. Peer and E. Gamliel, "Heuristics and biases in judicial decisions" (2013) Court Review 49, 114–118.
62.
"If one were to attempt to identify a single problematic aspect of human reasoning that deserves attention above all
others, the confirmation bias would have to be among the candidates for consideration." Raymond S. Nickerson,
"Confirmation Bias: A Ubiquitous Phenomenon in Many Guises" (1988) 2(2) Review of General Psychology 175
referred to in Eric Rassin, Anita Eerland and Ilse Kuijpers, "Let’s Find the Evidence: An Analogue Study of Confirmation
Bias in Criminal Investigations" (2010) 7 J. Investig. Psych. Offender Profil. 231.
63.
Rassin, Eerland and Kuijpers, "Let’s Find the Evidence: An Analogue Study of Confirmation Bias in Criminal
Investigations" (2010) 7 J. Investig. Psych. Offender Profil. 231, 232.
64.
Lon Fuller, "The Forms and Limits of Adjudication" 92 Harvard Law Review 353, 383.
65.
Lon Fuller and John D. Randall, "Professional Responsibility: Report of the Joint Conference" (1958) 44 American Bar
Association Journal 1160.
66.
Fuller and Randall, "Professional Responsibility: Report of the Joint Conference" (1958) 44 American Bar Association
Journal 1160.
67.
Fuller and Randall, "Professional Responsibility: Report of the Joint Conference" (1958) 44 American Bar Association
Journal 1160.
68.
Simon Smith, "Vexatious Litigants and their Judicial Control-The Victorian Experience" (1989) 15 Monash University
Law Review 48, quoting Holdsworth.
69.
Paul E. Mullen and Grant Lester, "Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From
Querulous Paranoia to Querulous Behaviour" (2006) 24 Behavioral Sciences and the Law 333.
70.
Mullen and Lester, "Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous
Paranoia to Querulous Behaviour" (2006) 24 Behavioral Sciences and the Law 333, 334.
71.
Those involved in civil claims, but against whom a court order had been made as a result of an act or threat of violence
in the course of pursuing the claim.
72.
Mullen and Lester, "Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous
Paranoia to Querulous Behaviour" (2006) 24 Behavioral Sciences and the Law 333, 338.
73.
Mullen and Lester, "Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous
Paranoia to Querulous Behaviour" (2006) 24 Behavioral Sciences and the Law 333, 340–341.
74.
Mullen and Lester, "Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous
Paranoia to Querulous Behaviour" (2006) 24 Behavioral Sciences and the Law 333, 344.
75.
Mullen and Lester, "Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous
Paranoia to Querulous Behaviour" (2006) 24 Behavioral Sciences and the Law 333, 343–344.
76.
PSU Annual Report for 2010–11.
77.
For a sympathetic reading of vexatious litigants and the argument that LIPs from minority ethnic backgrounds are
disproportionately classified as vexatious, see Didi Herman, "Hopeless Cases: Race, Racism And The ‘Vexatious
Litigant"’ (2012) 8(1) International Journal of Law in Context 27.
78.
R. Moorhead, "Access or Aggravation: Litigants in Person, McKenzie Friends and Lay Representation" (2003) 22 C.J.Q.
133.
79.
Michael Taggart, "Alexander Chaffers and the Genesis of the Vexatious Actions Act 1896" (2004) Cambridge Law
Journal 656.
80.
Lord Neuberger of Abbotsbury M.R., "General, Equal And Certain: Law Reform Today And Tomorrow" Statute Law
Society, Lord Renton Lecture 2011 (London, November 28, 2011), paras 15–18, available at:
http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-lord-renton-lecture-28112011.pdf
[Accessed August 1, 2013].
81.
Taggart, "Alexander Chaffers and the Genesis of the Vexatious Actions Act 1896" (2004) Cambridge Law Journal 656.
Page24
See fn.7 of the article and accompanying text.
82.
For a thorough discussion of available measures, see J. Sorabji, "Protection from litigants who abuse court processes"
(2005) 24 C.J.Q. 31.
83.
If a s.42 Order is thought to be warranted, the Treasury Solicitor will make an application to the Divisional Court under
s.42. The application will be heard by at least two High Court judges, one of whom will be from the Court of Appeal.
84.
The
Treasury
Solicitor
and
Vexatious
Litigants
(2010),
available
at:
http://www.tsol.gov.uk/Publications/Scheme_Publications/vexatious_litigants_policy.pdf [Accessed August 1, 2013].
85.
Ministry of Justice List of Vexatious Litigants, available at: http://www.justice.gov.uk/courts/vexatious-litigants [Accessed
August 1, 2013].
86.
It is notable that the vast majority of people on the list are men.
87.
Attorney General v Barker [2000] 1 F.L.R. 759.
88.
Barker [2000] 1 F.L.R. 759 at [19]-[22].
89.
A special working group on Litigants in Person in the Court of Appeal published a report in 1995, which led to greater
support being provided by the RCJ CAB. Otton, Lord Justice (1995), Interim Report Of The Working Party Established
by the Judges’ Council into Litigants in Person in The Royal Courts of Justice London (RCJ, London).
90.
Lord Phillips M.R., Court of Appeal Civil Division Review of the Legal Year 2002-3, Introduction, p.6, available at:
http://webarchive.nationalarchives.gov.uk/20110218200720/http://www.hmcourts-service.gov.uk/cms/files/review_legal_year_2003.pdf
[Accessed August 1, 2013].
91.
Bhamjee v Forsdick (No.2) [2003] EWCA Civ 1113; [2004] 1 W.L.R. 88.
92.
The wording is adapted from the Bhamjee case where the term "totally devoid of merit" was used. The term is used
when it is decided that the application for permission to appeal "discloses no reasonable grounds for bringing or
defending the claim; and that application is an abuse of the court’s process". Civil Procedure Rules r.3.4. Sorabji,
"Protection from litigants who abuse court processes" (2005) 24 C.J.Q. 31, 32, points out that this power derives from
the court’s inherent jurisdiction to protect itself from abuse of process; see in particular Grepe v Loam (1887) 37 Ch.D.
168; Ebert v Venvil [2000] Ch. 484.
93.
Hazel Genn and Lauren Gray, Court of Appeal Permission to Appeal Shadow Exercise: Preliminary Results (June
2004), Court of Appeal, Unpublished.
94.
Under the Civil Procedure Rules the Court of Appeal can mark a PTA as TWM after which the party cannot renew the
application and the court will consider whether to impose a civil restraint order. It is unfortunate that no statistics are
apparently kept regarding how many PTAs are refused as being TWM.
95.
For an account of the development of the jurisdiction leading to this codification see, "Vexatious litigants and access to
justice: Past, present, future", Speech by the Rt Hon. Sir Anthony Clarke M.R. June 30, 2006, available at:
http://www.judiciary.gov.uk/media/speeches/2006/speech-mor-30062006#headingAnchor1 [Accessed August 1, 2013].
96.
CPR PD 3C — Civil Restraint Orders. Orders can be made by a Court of Appeal judge; a High Court judge or master; a
designated civil judge or deputy judges in the Court of Appeal and High Court, available at:
http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part03c [Accessed August 1, 2013].
97.
CPR PD 3C para.2.1.
98.
CPR PD 3C para.3.1.
99.
CPR PD 3C para.4.1.
100.
See http://www.justice.gov.uk/courts/civil-restraint-orders#extendedcivilrestraintorders [Accessed August 1, 2013].
101.
Recent literature reviews have been published in England, Australia and Canada. Most of the academic research
studies on LIPs conducted around the world up to 2011 are listed in the English literature review published by the
Ministry of Justice: Kim Williams, Litigants in person: a literature review — Research Summary 2/11 (Ministry of Justice,
United Kingdom, June 2011). A more recent literature review was published in 2012 in Australia, E. Richardson, T.
Sourdin and N. Wallace, Self-Represented Litigants: Literature Review (Australian Centre for Court and Justice System
Innovation, Melbourne, 2012). A comprehensive document on various aspects of self-representation was published in
Canada in March 2012 and includes an annotated bibliography, Martha E. Simmons, Annotated Bibliography Of
Self-Represented Litigants (SRLS) Literature, Appendix IV, in Trevor C.W. Farrow, Diana Lowe, Bradley Albrecht,
Heather Manweiller, Martha E. Simmons, Addressing The Needs Of SRL In The Canadian Justice System, A White
Paper Prepared For The Association Of Canadian Court Administrators, (ACCA, March 2012); Julie Macfarlane The
National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, Final
Report (May 2013), available at: http://www.representing-yourself.com/reportM15.pdf [Accessed August 1, 2013];
Camille Cameron and Elsa Kelly, "Litigants In Person In Civil Proceedings: Part I" (2002) 32 Hong Kong L.J. 313;
Camille Cameron and Elsa Kelly, "Litigants in Person in Civil Proceedings: Part II Solicitors’ Perspectives" (2003) 33
Hong Kong L.J. 585;
Page25
102.
Richard Moorhead and Mark Sefton, Litigants in Person: Unrepresented Litigants in First Instance Proceedings,
Research Series 2/05, (Department for Constitutional Affairs, 2005).
103.
Kim Williams, Litigants in person: a literature review — Research Summary 2/11 (Ministry of Justice, United Kingdom,
June 2011).
104.
Beck C.J.A., Walsh M.E., Ballard R.H. Holtzworth-Munroe A., Applegate A.G. and Putz J.W. "Divorce mediation with
and without legal representation: a focus on intimate partner violence and abuse" (2010) 48(4) Family Court Review; J.
Dewar, B.W. Smith, and C. Banks, Litigants in person in the Family Court of Australia (2000) Family Court of Australia
Research Report No.20.
105.
The absence of no-win/no-fee opportunities in family cases contributes to the problem.
106.
Moorhead and Sefton, Litigants in Person: Unrepresented Litigants in First Instance Proceedings, Research Series
2/05, (Department for Constitutional Affairs, 2005), p.16.
107.
Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented
Litigants, Final Report (May 2013), available at: http://www.representing-yourself.com/reportM15.pdf [Accessed August
1, 2013].
108.
Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented
Litigants, Final Report (May 2013), p.39.
109.
David Luban made this point very well more than twenty years ago in arguing that legal representation was essential to
effective access to justice, David Luban, Lawyers and Justice: An Ethical Study (Princeton University Press, 1988).
110.
Civil Justice Council, Access to Justice for Litigants in Person (or self-represented litigants) (2011), p.13.
111.
Rebecca Sandefur, Elements of Expertise: Lawyers’ Impact on Civil Trial and Hearing Outcomes, American Bar
Foundation (October 2012), unpublished, p.40. See also a particularly persuasive study involving a randomised
experiment of low income tenants in a New York housing court. The study found that tenants with legal representation
experienced a significantly more beneficial outcome than those without representation, independent of the merits of the
case. C. Seron, G.V. Ryzin and M. Frankel, "The Impact of Legal Counsel on Outcomes for Poor Tenants in New York
City’s Housing Court: Results of a Randomized Experiment" (2001) 35(2) Law and Society Review 419.
112.
Sandefur, Elements of Expertise: Lawyers’ Impact on Civil Trial and Hearing Outcomes, American Bar Foundation
(October 2012), unpublished, p.41.
113.
H. Genn and Y. Genn, Effectiveness of Representation in Tribunals, Lord Chancellor’s Department (1989), p.113.
114.
Genn and Genn, Effectiveness of Representation in Tribunals, Lord Chancellor’s Department (1989), pp.243–247.
115.
Genn et al., Tribunals for Diverse Users, DCA Research Series, 1/06, Department for Constitutional Affairs (January
2006), p.191.
116.
Moorhead and Sefton, Litigants in Person: Unrepresented Litigants in First Instance Proceedings, Research Series
2/05, (Department for Constitutional Affairs, 2005), p.177.
117.
See E. Richardson, T. Sourdin and N. Wallace, Self-Represented Litigants: Literature Review (Australian Centre for
Court and Justice System Innovation, Melbourne, 2012); Trevor C.W. Farrow, Diana Lowe, Bradley Albrecht, Heather
Manweiller, Martha E. Simmons, Addressing The Needs Of SRL In The Canadian Justice System, A White Paper
Prepared For The Association Of Canadian Court Administrators, (ACCA, March 2012); Camille Cameron and Elsa
Kelly, "Litigants In Person In Civil Proceedings: Part I" (2002) 32 Hong Kong L.J. 313.
118.
Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented
Litigants, Final Report (May 2013), p.13.
119.
Civil Justice Council, Access to Justice for Litigants in Person (or self-represented litigants) (2011), p.34.
120.
Sir Andrew Leggatt, Tribunals for Users: One System, One Service, (Lord Chancellor’s Department, 2001).
121.
Genn and Genn, Effectiveness of Representation in Tribunals, Lord Chancellor’s Department (1989), pp.199– 202.
122.
See most recently Moorhead and Sefton (2005), Litigants in Person: Unrepresented Litigants in First Instance
Proceedings, DCA Research Series 2/05, pp.181–189.
123.
Court of Appeal judgment [1999] EWCA Civ 1144 not available, comments are quoted in Steel and Morris v United
Kingdom [2005] E.M.L.R. 15; (2005) 41 E.H.R.R. 22 at [33].
124.
Steel and Morris v United Kingdom [2005] E.M.L.R. 15; (2005) 41 E.H.R.R. 22 at [57].
125.
Tinkler v Elliott [2012] EWCA Civ 1289; [2013] C.P. Rep. 4 at [2]-[15].
126.
Tinkler [2012] EWCA Civ 1289; [2013] C.P. Rep. 4 at [32].
Page26
127.
Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234; [2013] 4 Costs L.O. 630 at [1]-[2].
128.
Civil Justice Council, Access to Justice for Litigants in Person (or self-represented litigants) (2011), para.20.
129.
See for example guidance produced by Foskett J. for LIPs, The Interim Applications Court of the Queen’s Bench
Division of the High Court: A guide for Litigants in Person, Revised edition April 2013, available at:
http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/lip_qbd.pdf [Accessed August 1, 2013].; also see
Civil Justice Council, A Guide to Bringing and Defending a Small Claim (April 2013) available at:
http://www.judiciary.gov.uk/JCO%2fDocuments%2fCJC%2fPublications%2fOther+papers%2fSmall+Claims+Guide+for+web+FINAL.pdf
[Accessed August 1, 2013].
130.
Russell Engler, "And Justice for All—Including the Unrepresented Poor" (1999) 67 Fordham L. Rev. 1987, 2006.
131.
John M. Greacen, Resources to Assist Self-Represented Litigants: A Fifty-State Review of the "State of the Art",
National Edition, Michigan State Bar Foundation, June 2011.
132.
Engler, "And Justice for All—Including the Unrepresented Poor" (1999) 67 Fordham L. Rev. 1987, 2045.
133.
Ryder, Judicial Proposals for the Modernisation of Family Justice, (Judiciary of England and Wales, July 2012).
134.
The suggestions are: a dedicated rule that triggers a variation to normal procedures when one or more LIPs is involved;
a specific power allowing the court to direct that proceedings are conducted by way of a more inquisitorial process; or a
specific general Practice Direction or new Civil Procedure Rule that would create a more inquisitorial form of procedure
and meet the access to justice needs of LIPs, Judicial Working Group on Litigants in Person Report, July 2013,
para.5.11, p24, available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf [Accessed
August 1, 2013].
135.
The term "McKenzie Friend" derives from the Court of Appeal decision in the case of McKenzie v McKenzie [1970] 3
W.L.R. 472. Levine McKenzie was a Petitioner in divorce proceedings who had exhausted his entitlement to legal aid.
The solicitors advising him sent an Australian barrister, who was not qualified to practice in the UK, to assist McKenzie
during the proceedings. The trial judge ruled that the barrister was to sit in the public gallery during the hearing and
could only advise McKenzie during adjournments. On appeal, the Court of Appeal ruled that that the trial judge’s
decision had denied McKenzie rightful assistance; "… all the assistance a litigant in person receives from a judge and
from opposing counsel is not really the same thing as having skilled assistance at his elbow during the whole of a
lengthy trial … It is moreover always, to my mind, in the public interest that litigants should be seen to have all available
aid in conducting cases in court surroundings, which must of their nature to them seem both difficult and strange."
Sachs L.J. at 42.
136.
Lord Gill, Report of the Scottish Civil Courts Review, Vols 1 and 2
http://www.scotcourts.gov.uk/about-the-scottish-court-service/the-scottish-civil-courts-review
2013].
137.
Lord Gill, Report of the Scottish Civil Courts Review, Vol.2 (2009) para.53, pp.21–22.
138.
The Lord President’s Working Group, Consultation On Proposals Concerning Lay Representation In The Court of
Session
And
The
Sheriff
Court
(2011),
available
at:
http://www.scotcourts.gov.uk/docs/consultations/lay_representation_in_the_court_of_session_and_the_sheriff_court.pdf?sfvrsn=2
[Accessed August 1, 2013].
139.
Sheriff Court, Act of Sederunt (Sheriff Court Rules) (Lay Representation); SSI 2013/9; Chapter 12b2 of the Rules of
Court of Session.
140.
Sheriff Court and Court of Session Rules r.1A.2.(1).
141.
Sheriff Court and Court of Session Rules r.1A.2.(4).
142.
See for example The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685)
(L. 13) as in Force on April 8, 2013, r.11(1).
143.
The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) r.11(5).
144.
Judicial Working Group on Litigants in Person Report (July 2013), p.31, para.7.1.
145.
Judicial Working Group on Litigants in Person Report (July 2013), p.13, para.3.23.
146.
Judicial Working Group on Litigants in Person Report (July 2013), pp.13–14, para.3.23.
147.
Judicial Working Group on Litigants in Person Report (July 2013), para.3.29
148.
Judicial Working Group on Litigants in Person Report (July 2013), para.3.32
149.
Rebecca Albrecht, John Greacen, Bonnie Rose Hough and Richard Zorzsa, "Judicial Techniques for Cases Involving
Self-Represented Litigants" (2003) 42(1) The Judges’ Journal 16.
(2009): available at:
[Accessed August 1,
Page27
150.
Albrecht, Greacen, Hough and Zorzsa, "Judicial Techniques for Cases Involving Self-Represented Litigants" (2003)
42(1) The Judges’ Journal 16.
151.
See above the divergent approaches of Steel & Morris and Tinkler and the analysis of the US case law in Albrecht,
Greacen, Hough and Zorzsa, "Judicial Techniques for Cases Involving Self-Represented Litigants" (2003) 42(1) The
Judges’ Journal 16.
152.
Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers, Judicial Council of California
Administrative Office of the Courts, Center for Families, Children & the Courts (January 2007).
153.
Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers, Judicial Council of California
Administrative Office of the Courts, Center for Families, Children & the Courts (January 2007), p.3–2.
154.
Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers, Judicial Council of California
Administrative Office of the Courts, Center for Families, Children & the Courts (January 2007), pp.3-8–3-11.
155.
Judicial Working Group on Litigants in Person Report (July 2013), p.21, para.4.19.
156.
Lady Hale, "Equal Access To Justice In The Big Society", Sir Henry Hodge Memorial Lecture 2011, available at:
http://soundoffforjustice.org/wp-content/uploads/downloads/2011/07/Henry-Hodge-lecture-FINAL.pdf [Accessed August
1, 2013].
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