The Judicial Working Group on Litigants in Person have now published a report into the issues now facing people representing for themselves and the court service and how to tackle them.
It comes as no surprise that people are representing themselves in ever growing numbers since the withdrawal of legal aid on 1st April for most family law cases.
But it isn’t just those who would have been eligible for legal aid previously who now choose to conduct their own case in court.
The report has found that many people simply believe that it isn’t going to be that difficult and so decide to do it themselves. I have no doubt that the abundance of unregulated websites owned by non-lawyers purporting to offer “advice” and even representation during court proceedings have a lot to answer for in this respect.
They of course benefit from encouraging this illusion that the work conducted by solicitor advocates and barristers is “money for old rope”.
I have watched as more and more people arrive at court without representation. They are often confused and feeling slightly vulnerable no doubt. With this comes a tendency to be on the defensive, refusing to speak to anyone from “the other side”, refusing to negotiate or agree any directions. This is understandable but it is a fact that it is making it increasingly difficult for anyone (including the individual themselves) to get the desired result.
Going to court to represent yourself without help is rarely straightforward in fact, no matter how intelligent you are, how articulate, how confident. The rules are complex, the reasoning behind decisions often difficult to grasp. And of course there is no one from the court service or the judiciary to fill the gap in advice
The net result is that the system is slowly grinding to a standstill which is compounding the frustration people feel.
Only weeks after legal aid was withdrawn it is apparent that the court office staff in particular cannot cope with their increased workload. The report confirms what pressures they are facing; people who do not understand what is expected of them generally turn to the court office for help. But the court staff are not trained legal advisers and cannot give advice. They are spending longer answering the phone and dealing with people at the counter than they were previously and as there are no additional staff to deal with this, this means that there is less time to do the paperwork.
We have found that a couple of our local courts are now 3-4 weeks behind opening post. Court applications are being filed away without being dealt with. Hearings can take months to be listed even when the issues merit being dealt with fairly urgently.
In the court rooms the Judges are finding it difficult to deal with heightened emotions and people who are very confused about what is expected of them and how to provide it. Many people are nervous and can’t get their points across. Hearings are taking longer. Outcomes are less predictable and often not what the individuals wanted.
So if you thought it was bad before people had access to free legal advice be prepared for it to get an awful lot worse.
Moaning about this is not going to improve the situation however. So what can be done about it? Where can people turn to when they can’t afford representation?
The government is intending to improve the information available on its websites, simplify the language used in court proceedings and pour some money into the struggling CAB.
It isn’t going to be quick and it won’t be enough.
Many firms of solicitors are now offering pay as you go legal services. Individual pieces of advice on how to take a certain step in proceedings with the customer/client managing the overall process themselves.
I have helped a lot of people this way recently. It isn’t always easy as I am dependent on receiving the right information in the first place to help me give the right advice. But we are developing ways to obtain that information systematically and efficiently which in turn reduces the cost for the consumer and also the risk of missing something important. And the feedback we are receiving is very positive. It will work. I am convinced of it. But it will take time to spread the news of the availability and benefits of this type of advice.
Barristers also offer written advice and face to face meetings where they will give one off pieces of advice.
The CAB can provide information to individuals as can certain charities.
Groups of solicitors are also taking turns around the country to set up a rota at court to provide free advice for people at court. This is particularly in relation to family law.
We all need to adapt to the changing landscape of what people need and how to provide it economically enough for people to be able to afford it.
What seems to concern the judiciary and this is apparent from this report, is the growing number of “McKenzie friends” who are attending court. A McKenzie friend is not a solicitor or a lawyer in the traditional sense and there is no requirement for them to have any legal training at all. It can in fact simply be a friend or relative who comes to court to offer support or assistance akin to advice.
In our justice system anyone representing themselves has the option to bring someone into court with them, but there are strict rules about what that person can and cannot do whilst in the court room and beyond.
What concerns me, and from the report it seems to concern the judges as well, are the people who are setting up as “professional” McKenzie friends. These people are paid to go to court with you. And according to the report, are often more expensive than a solicitor or barrister would be.
You may wonder how this is known. Well, every time people go to court the Judge will ask how much is being spent on advice and assistance. Providing this information is a mandatory requirement in most proceedings. And so it is fairly easy for the Judge to compare the fees being charged by a solicitor or barrister with the fees being charged by a McKenzie friend.
It isn’t just the cost that is a concern however. What has come out of this report is just how much concern there is that these people have little or no training in some cases and of course they are unregulated and so when they get something wrong there is no one to investigate it and put it right for the consumer.
They are not insured either and so when it does go wrong there is no redress.
Here’s some of what the report is saying:
“Generally, the practice has been that where it will be beneficial to the fair and just determination of a case to have a lay person conduct a hearing on behalf of a litigant in person, then the right is granted in the interests of justice. However, there has in recent years been a substantial increase in “professional” lay advocates who, without the requisite training or regulation of a professional lawyer, seek to act as advocates for litigants in person in court on the payment of a fee. Some of these representatives charge fees which are similar if not more than those of a professional lawyer. Some are unable effectively to represent the litigant. Some are positively disruptive to the proceedings.”
I have noticed that one of these professional McKenzie friends has opened a petition claiming that the judiciary is trying to limit your rights. This is, with respect, absolute nonsense. The judiciary wants simply to ensure that when you are represented it is by someone who knows what they are doing and is not going to charge you a fee for something you could frankly do better yourself.
There are very good reasons why only certain professionals are allowed to conduct court proceedings for clients. Being regulated protects the public and ensures justice is done. Yes there will be some solicitors who aren’t very good. There are people in every industry who could improve or are downright incompetent. But the overwhelming majority of solicitors I know, do know their stuff.
And I question why someone who has not taken the time (and invested the significant sums it now costs) to complete the academic stage of qualifying, to comply with the ongoing lifetime training requirements, someone who hasn’t bothered to work for several years on low pay (you could earn more in just about any industry) to gain on the job experience, someone who elects not to pay the fees to the law society to be allowed to practice, or to take out the professional insurance at several thousand pounds per year, considers that they offer a better alternative.
These are difficult times for everyone involved in court proceedings, from the people involved to the court staff to the Judges.
Lawyers can help. Being a family lawyer is neither glamorous nor well paid – whatever the papers say and no matter what the hourly rate charged by the firm is.
Family lawyers have chosen that vocation by and large because they like helping people. Does that sound naff? Well why on earth else would we do it? I don’t have a fetish for watching people cry. I don’t enjoy seeing their despair or their pain. I like contributing to making it go away.
I wish I could do more mediation but according to National Family Mediation referrals are down as more people are likely to turn their backs on it without the assistance of a solicitor. This is my own experience too. Instead I will continue to offer as economical a service as I can, one that is regulated and insured, one that I have spent 27 years developing my skills and experience to provide.
And if you prefer to listen to the advice of someone who’s CV reveals nothing for 20 years before setting up a divorce clinic with no legal training, I’ll still be here if it goes wrong – still ready to help.
If you need assistance preparing any documents for court or want some advice about your case please call me on 0161 486 5080. We do charge (a reasonable sum) for advice and documents – but old rope is absolutely free.