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How legal aid reforms are clogging up the courts

20 February 2014

Litigants in person – individuals representing themselves, rather than relying on a lawyer – have always been a feature in courts, and are the source of the aphorism ‘a lawyer who represents himself has a fool for a client’. While the profusion of courts means there are no easily available statistics as to their numbers, as late as 2011, about one fifth of cases featured litigants in person. Since the government slashed legal aid in April of last year, the number of them has exploded. While the funding for these cases has vanished, the right to go to court has not.

The most recent set of figures is for autumn 2013 – before many cases under the new regime were launched. Lawyers and judges tell me anecdotally numbers have spiked – about half of cases with one party or other unrepresented is a rough number that many judges and barristers agree on, and Judges have gone on the record to say unrepresented people now are the majority of cases. Litigants in person are getting higher and higher up the justice system too – only last week, the Supreme court issued guidelines for dealing with people without legal representation arguing before it, in preparation for a string of upcoming cases.

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Mister Justice Holman did a good job of summing up the difficulties judges face on trying to rule in these disputes:

‘I have no  legal representation…no expert evidence of any kind. I do not even have such basic materials as an orderly bundle of the relevant documents; a chronology; case summaries, and still less, any kind of skeleton argument. Instead, I have had to rummage through the admittedly slim court file..I shall do my best to reach a fair and just outcome, but I am the first to acknowledge that I am doing little more than “rough justice”.’

One immigration barrister I spoke to, Greg O’Ceallaigh of Garden Court, put it bluntly saying ‘the man in the street has as much chance of dealing with these issues as building their own rocket to the moon’. Since the abolition of legal aid funding,  he’s seen British citizens detained for months by the borders authority, and some almost deported, just because they didn’t have a clue how to prove they were British in a courtroom. ‘People do so much damage by representing themselves – it’s so frustrating when you come to a case quite far down the line that could have been won earlier. People have no idea how to present evidence and no idea of what courts are looking for in legal arguments’.

The scope of the areas now removed from legal aid are much wider than most people realise – for example, most family law where there’s no domestic violence alleged is now completely outside the scope of legal aid. As legal aid is only available to the alleged victim of domestic violence, this creates a huge problem in those cases – abusers are able to use the courtroom setting to directly attack their victims. It rarely escalates to the stage where an abuser will physically assault the person he is questioning – as occurred in this recent case where a husband punched his wife in the courtroom – but judges are increasingly having to step in to prevent intimidation by questioning.

The judge stepping in, and attempting to see justice done, and accommodating the special needs of litigants in person, is part of why these cases are such a bad idea – they take much longer in court, and court time, in particular, is not cheap. Spending a morning in the Royal Courts of Justice this week, I observed a scene where two litigant in person cases were first on a docket of 16 cases for the day. On seeing they were litigant in person cases, most barristers turned around and went back to chambers. One advocate, who asked not to be named, said to me ‘the court normally would assign half an hour to a matter like that – but that one will take all day’. I waited around, and he was proven right. Meeting him for a drink afterwards, he made the point that if cases were taking 16 times longer than they should be, would was that doing to the Ministry of Justice’s apparent cost savings? As Lord Justice Ward said, ‘It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts’.

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  • lauralouise90

    I definitely think that not having legal aid but those who then have to represent themselves at a disadvantage… if you’re up against a client who can afford the best team you could be in trouble! Surely the fairest way for this to work is that both clients represent themselves. Laura @ Tilly Bailey Irvine

    • Mr Trainbeans

      I see the advantage in principle of making sure that if one client represents himself the other has to, although what if one party IS a legal professional? Or what if it’s a company who has lawyers on permanent staff hence would be “representing itself”…one could also pay for advice outside the courtroom…one envisages a silly future where clients “represent themselves” while wearing Google Glasses, parroting line for line statements and responses made by their lawyers in their offices miles away, ha ha. There’s still the problem of people who don’t understand procedure and convention clogging up court time through no fault of their own and this needs to be dealt with.

  • James

    The author says: “most family law where there’s no domestic violence alleged is now completely outside the scope of legal aid. As legal aid is only available to the alleged victim of domestic violence, this creates a huge problem in those cases …” but I think he missed the point of what the huge problem is. It is of course an invitation to fabricate untrue allegations in order to get Legal Aid. Stephen Baskerville has covered this phenomenon in a myriad of writings. In fact he highlights examples of where “lawyers” coach women in making false allegations. In short, the article reads as if it’s come from a dreaded Vulture’s press release.

  • Alistair Parker

    There is a very good point here that, often, if you reduce spending in one part of the system, sometimes it is simply passed on to another part. This is the practical observation of an impartial observer. Will Foxton should be commended for pointing this out. It is no sort of response just to say ‘Well, I don’t like your observation because it seems to challenge my opinion’. Well done Will.

  • Hillymudmash

    I work in the family courts (private family law) and they are now far quicker in moving cases through the system, than when Legal Aid was available.

    Lawyers on Legal Aid slow cases down by eking out as much money from government coffers as possible. It used to be very common to see mothers on LA for years who have ignored Court Orders to allow contact between a father and his children – All the time supported by a solicitor and barrister on Legal Aid who milked the system by opposing Orders of the Court, often for many tens of thousands of £.

    Legal Aid is an abomination in the family courts (except Public Law) and it’s withdrawal means judges can get on with making deliberations without lawyers slowing matters down because they want to earn more fees.

    The family court system and children are far better without lawyers for the most part as most cases are about common sense and with an inquisitorial judge, the system works slicker and more in the interests of children, rather than lawyers.

  • DavidL

    Reading this article and the comment thread, I’m tempted to conclude that British Justice is “the best justice money can buy”. Dear Lord, I hope not.

  • swatnan

    ‘Dredging’ might the the answer … to everything.

  • David Webb

    Greg O’Kelly of Garden Court may benefit financially from the immigration scam, but these “British citizens” who can’t prove they’re “British” shouldn’t be here. As far as I’m concerned, if you’re not of English, Scottish, Welsh or Irish descent, you can’t be British.

    • Neil Ross

      How far back does one need to go to qualify? My grandparents weren’t born here but my parents were, as was I. Is that sufficient to meet your criteria? If not, where should I go?

      • Tom Tom

        Oliver Letwin’s grandparents weren’t born here, nor were Nigel Lawson’s, nor Michael Howard’s, and that is only the Jewish contingent of the Conservative Party

      • David Webb

        I’m not talking about “born here” or not – I’m talking about ethnic ancestry. Presumably the Rosses are of British Isles extraction. The Patels are not – even if they were born here.

    • Donafugata


      Those who have been denied leave to remain and go on to challenge the decision should find their own expenses.

      It’s an outrage that they call launch multiple appeals on legal aid.

  • David Webb

    This article is just an attempt to scrounge more public cash for lawyers. It should be assumed in nearly all cases that people will represent themselves, and things should be streamlined to that end.

    • Tubby_Isaacs

      The point is that people representing themselves are clueless and it takes much longer.

      • David Webb

        Then a simple court-authorised guide to basic procedure should be produced – but it should not be assumed that the legal system should be managed in such a way as to funnel public money into lawyers’ pockets. I see no valid role for lawyers in a justice system worthy of the name.

  • RocketFuel101

    Help4Lips is a useful set-up. LiPs are a growing reality. My comment about Help4Lips on this article yesterday didn’t get posted, but I’m having another go on the presumption that the Spectator publishing about LiPs has more purpose than just to complain about plebs “clogging” things up.

    • jeff lampert

      Help4LIPs has been set up to help litigants in person better comprehend the very complex legal system. If it helps legal professionals to better comprehend litigants in person, that can only be for the good of everyone.
      Our aims remain the same as stated in Lord Ahmed’s introductory video on our site.
      Jeff Lampert
      (co-founder Help4Lips)

    • FrenchNewsonlin

      Strange to see a website offering help to those facing the criminal justice system, touting a video endorsement from Lord Nazir Ahmed, a man with a criminal conviction. The peer, involved in a fatal motorway crash, admitted to driving while texting on his mobile. Later he was suspended by the Labour party for antisemitism. Prior to that he achieved notoriety for allegedly threatening to storm parliament with an angered Muslim army. Is he really the best recommendation Help4Lips can offer?

      • jeff lampert

        If you want a “balanced” view of Lord Ahmed, I suggest you look him up on Wikipedia.

  • Daniel Maris

    A much better way of reducing legal costs would be to introduce time limits on trials.

    Today we have the absurdity of a defendant telling us their life story, including stories about grandma and the early part of their career – for hours on end in court. Absolutely ridiculous and nothing to do with the trial in question.

    A good recent example of where a time limit would help was the trial of the murderers of Lee Rigby which went on for weeks. The facts of the case were clear for all to see. A time limit of two days would have been sufficient.

    • Tom Tom

      Crown Court is not the only court you know Daniel, and they are time-limited. Criminal trials involve loss of liberty

  • telemachus

    And there is the rub

    ‘the man in the street has as much chance of dealing with these issues as building their own rocket to the moon’.
    The short sighted measures have denied justice to the poor
    There is a high profile trial at the Old Bailey currently where the defendant giving evidence today has paid 7 figures for her legal representation
    What will we conclude if she gets off on the 4 residual counts?

    • HookesLaw

      You can conclude justice was done. The aid referred to deals with things like divorce and welfare and negligence. Should the state give aid when two people choose to divorce?

      • Tom Tom

        The Legal Aid system was set up to deal with Divorce of returning soldiers after 1945 whose wives had been unfaithful. It became subverted by the Asylum Appeals soaking up the money

      • James

        The trouble is nowadays, two people don’t. 80-90% are requested by one spouse against the wishes of the other. The law deliberately misconstrued what ‘no -fault’ was intended to mean for fear the conflict and hence revenues would be affected. The law in it’s majesty, decided one could lose house, family, assets and if you didn’t acquiesce, be jailed, through literally “no fault” of your own. In short, these “courts”, are diabolical cesspits of criminality, sanctioned by the State.

    • David Webb

      You’re made it clear you are immigration lawyers, Telemachus – clearly determined to corner government spending for yourself (aka scrounging, in my book).

  • Tom Tom

    Having done the LiP route I am amazed at the pitiful quality of lawyers, the cut-and-paste evidence Bundle and the illogical Skeleton. It is only because Judges lean over backwards to protect their Union Members that they stand a chance. The low-quality high-priced lawyering we are subjected to with crappy spelling and cost-plus approaches should be halted.

    The solution each Court should throw out specious cases instead of letting them go to trial. An Accountant should check Budgets and surcharge lawyers for wasting time. It is time Management took control of the leisurely pace of 10.30 to 4pm with luncheon. it is time proper Copy Shops and Print Shops existed in Courts. It is time Transcription was available immediately and cheaply.

    The system is backward and even the attempts at IT are fatuous showing lawyers to be innumerate, and barely competent with technology not to mention increasingly illiterate.

    Any educated professional should be able to represent himself but the knavery of The Guild sets out to invent new restrictive practices and stunts to protect a lucrative hours-charged for a racket bordering on extortion…..oh and why does it cost 20% VAT to defend yourself using a lawyer ?

    • Neil Ross

      VAT is charged as a result of EU law (oddly enough). If you could get rid of VAT even lawyers would be happy and the legal aid bill would automatically reduce by 20%.

    • ablanche

      Lost did you?

      • Tom Tom

        No, I did not but thanks for asking. LiP does not get his real costs back but some trivial sum

  • MirthaTidville

    Well the one`s to blame are the lawyers.After a lifetime in this field, they have ripped the proverbial out of it. Adjournment after ajournment,especially when it was in the Magistrates, most of whom could be fooled with a three card trick, was one of their favourite tactics. They caused a backlog then, the only difference is they were handsomely rewarded for it.Some law firms did no private work at all, and they all did very nicely out of it. Something had to change and sadly `Joe Public` as always is the loser

    • Tom Tom

      Yes, but some clown seeks to extort from you and you cannot waste time and money on a lawyer where you face a 20% VAT surcharge with no prospect of recompense…… is outrageous how quickly you can get caught up in the legal net. I have spent 12 months on a fatuous affair where the other side should have gone to jail for fraud…..they had a facricated case

      • telemachus

        I am sorry to hear
        I have a friend who has paid out thousands from his own pocket to get redress from a tradesman who knocked down his garden wall
        I am terrified that something will happen to me not covered by the low allocation in my domestic insurance
        Let alone the poor folks falsely accused of a crime

        • ablanche

          Take some water with it love – almost as ignorant and illiterate about the law as you are about politics.

          • telemachus

            You may belittle as you will
            There are millions terrified by the prospect of litigation for which they have no resources to defend themselves

    • Neil Ross

      In the magistrates court, if the case is a criminal matter, legal aid is a fixed fee. An adjournment therefore costs lawyers money, rather than gains it.

      • MirthaTidville

        Yes now it does, but in the past when Legal aid was in freeflow, it was a good earner and yes they did admit it in private..

        • Neil Ross

          Before my time, but anecdotally that was true for some. That was a very long time ago though. Legal aid is no longer a good earner, especially in criminal work. In reality, pay is far below (for most) equivalent professions. Cuts now are ideological and more importantly can work out more costly – money spent on prevention is almost always cheaper than cure. Lawyers in family matters help reduce court costs and encourage mediation. Lawyers in criminal are obligated to advise on plea and reduce delay. If anyone thinks that defendants/claimants representing themselves is a better system then they just need to go to court to see otherwise.

    • Shorne

      I was a Probation Officer for 30 years, a job which involved a lot of sitting around in Courts waiting for Magistrates or Judges to ask me to prepare a report (which frequently became the lawyer’s script at the next appearance but that’s another matter). if it was a lay Bench in the Magistrates’ Court lawyers would enter take a quick look at the Magistrates, take the Lord’s name in vain, and seek an adjournment for some spurious reason in the hope that it might be a District Judge next time. They would openly admit this as DJs might be more willing to take risks regarding non-custodial sentences. Sometimes if I was waiting in the lobby they would ask me “Who is it in Court 3, Judge or Muppets (after Statler and Waldorf in ‘The Muppet Show’ – think about it). They would then go into a quick huddle with their clients. I saw this countless times and still wonder how much it did/does contribute to delays.

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