This article, in The Law Society Gazette, written by a District Judge makes interesting reading. He addresses his article to solicitors:
I am on a mission and I need your help. I am worried about the increasing numbers of litigants appearing in the county courts of England and Wales without any legal representation.
In civil and family proceedings, claimants come to us as a last resort. Respondents generally do not ask their opponent to take them to court, they just want the case to go away, but it does not. So, by the time the district judge gets to see the papers, it would be really helpful if at least one if not both parties have taken some legal advice about the legal principles involved in the dispute, the documents and the evidence that will be required, and how to comply with all the procedural requirements.
When legal aid abounded, there was a level playing field to the extent that both parties had the benefit of legal advice throughout the preparation period and with the advocacy in court. Now, judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 and have breached most of the case management Directions.
The first question is: what can I do to help these people? Easy answer – I will take whatever time is required to hear what I need to hear and to read what I need to read to enable me to provide an informed decision with reasons so that the parties leave my court understanding what I have done and why I have done it.
The second question is more difficult: what can you do to help? You can make yourself available at a fee to see them with all their documents so that you can put yourself in the position of the district judge and ask yourself what they have to do to make an informed decision about the dispute. An efficient use of, say, one hour should enable a competent lawyer to identify the issues, identify what documents and evidence will be required and to explain the procedural hurdles that the litigant may meet in the course of getting to see the district judge. The value of such an hour to a litigant in person would be inestimable, as it would be to the district judge.
I hear you shouting at me – what about Padden v Bevan Ashford  All ER (D) 42 (Feb)? A fact-specific case, where a wife sought solicitor advice about giving up her interest in a property in circumstances where her husband was in financial difficulty. The Court of Appeal warned that you must be careful to ask the client the right questions in order that you can give the right answers. No legal adviser can provide a cast-iron guarantee of a particular outcome of litigation. All I am urging is that the litigant in person is advised, not necessarily of the likely outcome, but about the core points of the law, documents, evidence and procedures.
I would like to see an arrangement that will replace the old retainer out of which solicitors cannot extract themselves without compliance with CPR42, with say one hour’s advice at a reasonable and modest cost. I have particularly in mind matters involving contract law relating, for example, to building work, property, cars, loans and small business disputes: also, financial remedy (these used to be called ancillary relief) and Children Act 1989 applications.
There are lots of ideas being developed behind the scenes to help litigants in person, but it is the help of a lawyer that will surely be of the greatest value. Please help me, but more importantly please help the litigants who cannot afford a full retainer but who really do need the assistance of a lawyer en route to the district judge.
By the way, litigants in person are soon to undergo a name change to self-represented litigants (SRL). The Civil Justice Council has set up a working party to provide some guidance for, among other things, solicitors representing a party against a SRL, and about what the SRL is entitled to expect from the solicitor: talk constructively, do not ignore them and the rest.
A new name but old problems.
District Judge Richard Chapman is the new president of the Association of Her Majesty’s District Judges and sits at Telford County Court
Yes, I saw this. Obviously it applies to more than just family cases. I''m chewing over whether my firm can offer this sort of fixed fee review and advice service. What do people think? Is it something you would find attractive or is the judge out on a limb here?
I think we may see a variety of interesting and controversial ideas to prevent complete meltdown as legal aid becomes harder to obtain. In an interesting entry on Lucy Reed''s Pink Tape blog an anonymous barrister asks why parents need to be joined as parties at all.
I wonder if the adversarial system - which does not often work in the best interests of children - will survive.
I have always thought it very unfair in situations where one person can obtain legal and the other has to self fund, particularly when one party through the legal aid system, is more easily able to make vexacious applications.
I hope the adversarial system does not survive. However well meaning solicitors and barristers may be, they can make a good living from the misery of others and I would like to see an end to it.
For all its imperfections, I still think 50/50 shared parenting as a default would go a long way in reducing court appearances. When parents have a defined starting point by law, they know that they will have to work out together what is best for their families.
I agree on the issue of the legal aid issue here. My partners ex got legal aid and still has it for a contested final hearing where the Cafcass report is in my partners favour. When you take all her benefits and add them up she gets £3k per year more than him and then his child maintenance on top.
He self reps and pays for an occasional hr with a solicitor for advice. Were she a victim of domestic abuse or similar I perhaps wouldnt object so strongly but she lied and amde up accusations - (Im not a bitter new girlfriend btw - the allegations have been totally disproved)
Were she threatened at the start with having to pay it back, thenh she perhaps wouldnt have strung it out for so long.
The problem is that legal representation is just so expensive, perhaps if they did this kind of fixed fee work people would go for it - I know we would have done