LiPs do it for longer – should we believe the bumper sticker?

After the recent Panorama documentary “DIY Justice” people started tweeting under the hashtag #diyjustice that “Litigant in person cases take 50% longer than those with legal professionals involved”, and other variations on the theme that litigants in person are “clogging up the courts”. Screen Shot 2015-04-05 at 22.11.50As is the way with twitter, people soon started questioning the evidence upon which this assertion was based. In fact it was drawn directly from remarks made in the programme by Sir Alan Moses, retired Court of Appeal judge (and latterly chair of IPSO) to that effect, based, it appears, upon his own first hand judicial experience.

Now, whilst anecdote from a recently retired Court of Appeal Judge about what goes on in our courts is probably at the more reliable end of the spectrum of anecdotal evidence, it would be more satisfactory if we could back up that anecdote with statistics. In fact though, such statistics as we have are not entirely helpful or clear.

Before we look at the evidence base though, it is worth defining our parameters. We need to be clear that there are a number of ways in which litigants in person (or any other category of litigant) might adversely impact upon efficiency:

  • they might tend to have longer overall case durations than other categories of litigant
  • they might tend to require hearings which take longer than other categories of litigant
  • they might tend to bring more cases to court than other categories of people in dispute (including by failing to be diverted to NCDR or by bringing serial applications)
  • they might tend to generate more judicial / HMCTS work in terms of counter staff time, complaints, and ancillary judicial and administrative work (reading and preparation time, dealing with correspondence etc – see here for an explanation of that)

For my part, my sense is that there might be a cohort of LiPs whose cases appear to be more straightforward, and who skip off into the sunset with relative ease after an FHDRA. And there are some who struggle through to the point of CAFCASS recommendations or the final hearing shortly after, and emerge bruised and battered and just glad it is over, wondering how the experience has helped their family at all. But there is a rump of LiPs whose cases are not “cracked” so easily as that, and which take up a disproportionate amount of judicial and court time and resource. That phenomenon is not unique to cases involving LiPs – we could equally observe this fork in the road in lawyer run cases – but I suspect that the result in terms of court efficiency is more pronounced in LiP cases, and the outcomes less reliably robust. It might be therefore that the average duration of LiP cases may not be a particularly informative statistic, as it may be capable of distortion by one or two cases.

So, what evidence do we have to support Sir Alan Moses’ own view?

The judicial view that LiPs take longer has been around for a while, and is pretty widespread (and is shared by many lawyers). That doesn’t make it necessarily accurate, and there are many reasons why anecdote alone is not enough – but it is nonetheless important to heed the shared experience of those who are “on the frontline”, whilst seeking other evidence to corroborate or challenge that view.

A 2011 report by the Civil Justice Council (which includes several judges) entitled, Access to Justice for Litigants in Person, said:

The general consensus from judges was that hearings increase in length by at least 25% with self-represented litigants; 50% for complex cases.

The idea that cases with LIPs take longer is fairly widespread in the research, both before and after LASPO. Back in 2002, Nic Madge, a circuit judge and an editor of the White Book, when discussing litigants in person on his blog, observed (quoting Judicial Studies Board Journal, 2002, Issue 15)

When judges talk among themselves about civil cases, it is not unusual to hear of difficulties in cases with litigants in person. It is indeed easy for judges and court administrators to regard litigants in person as a problem. They may not know the procedure. They may not prepare documents in the same way as lawyers. They may make points which, to lay-people, appear “right”, but which have no foundation in law. Cases involving litigants in person seem to take longer. (emphasis added)

In 2005 a study conducted by Professor Richard Moorhead for the Department of Constitutional Affairs, entitled Litigants in person: Unrepresented litigants in first instance proceedings, noted that

This suggests that non-representation in family cases, other than divorce, is generally associated with cases taking longer.

The Judicial Working Group on LiPs July 2013 report (just post-implementation of LASPO) predicted that

There is also likely to be a significant rise in the need for (and the length of) preliminary hearings to deal with issues that have to be resolved before substantive hearings can take place.

and concluded that it was “inevitable” that cases were going to take more time. They set out cogently the sorts of difficulties that the judiciary and court system might encounter, based upon past and current experience.

More recently, in November 2014 we had two pieces of research. We had the Government’s Ad Hoc Statistical Release : Experimental statistics: analysis of estimated hearing duration in Private Law cases, England and Wales, which I wrote about in a blog post entitled The Big Experiment (in short, whilst this generated some relatively robust headlines these statistics didn’t really tell us much of use regarding how long individual hearings ACTUALLY take – see also Professor Richard Moorhead on the Lawyer Watch blog on this topic : Litigants in person, never mind the quality – it’s length that counts). In the same post I also touched upon the more substantive piece of news that week, which was the publication of the long awaited The Litigants in person in private family law cases research study (Trinder et al). The Trinder research reminds us that :

Despite judicial and policy interest, however, the research base on LIPs is modest.

Government-funded work includes Moorhead and Sefton’s (2005) research on family and civil courts and the Ministry of Justice’s relatively recent literature review (Williams, 2011). The MoJ review suggested: that there are “a number of gaps in our understanding of this issue”; that “unrepresented litigants in family and civil cases were common” but often “inactive, particularly in civil cases” (less so in family cases); and that LIPs might face problems “understanding evidential requirements, identifying legally relevant facts and dealing with forms” and coping with oral procedures (Williams, 2011:1). Court staff, the judiciary and lawyers “felt compensating for these difficulties created extra work and possibly presented ethical challenges” (2011:1). The MoJ review suggested evidence on case duration was mixed (partly because cases where LIPs did not participate tended to end quickly). Similarly, “the evidence indicated that lack of representation negatively affected case outcomes, although few of the studies reviewed controlled fully for case complexity” (2011:1). Internationally, Macfarlane’s large, interview-based study in Canada, for example, emphasised problems caused by complex court processes and court guides, confusing online resources which did not meet LIP needs, and “negative experiences with judges” (Macfarlane, 2013:13).

They observe that in their sample

many LIP cases appeared to proceed relatively smoothly, at least in terms of the limited number of quantitative indicators of case duration, hearing length, adjournments and method of reaching disposal.

They also stated that

A frequently expressed concern about litigants in person is that as well as experiencing difficulties with court proceedings, they create difficulties for the court system by means of unmeritorious applications, non-appearances and various forms of disruptive behaviour. This section examines these concerns and finds them occurring relatively infrequently in the sample. Non-appearances were the biggest issue, but these as well as other problems could often be explained by the procedural challenges and vulnerabilities that litigants in person faced.

They go on to explain that no-shows by a LiP were at 25% in the sample observed, and this was felt to be an underestimate of the general no-show rate due to the study methodology. (It’s beyond this post to deal with the vexed question of whether or not the outcomes of a justice system involving fewer lawyers and more highly pressurised LiPs is producing robust, safe and durable “good” outcomes for children and families if people feel unable to participate at all or to articulate their concerns and rationale – but it is a matter of great anxiety to many working in the family justice system (and indeed to those who have gone through it themselves).)

The researchers highlight a feature of their sample group :

The notable point here is that all of the serial applicants were male, and in five of the cases the respondent mother/wife was in person. This, then, is another form of vulnerability experienced by women LIPs – that they may face a series of harassing applications by their ex-partner, which brings them back to court repeatedly and exhausts their funds (hence their LIP status), and, as illustrated in A026 in particular, as LIPs they do not know how to ask the court for an order restraining further applications.

It is important to recognise that, valuable as this research is, the sample size was limited (151 cases involving 165 LiPs) and as such they did not observe various phenomena reported to them from the direct experience of court staff / judiciary, and the sample may in some respects be unrepresentative – partly due to sample size and partly due to case / hearing selection methodology. For example, court staff had reported the (well known) phenomenon of LiPs producing inordinately long statements and insisting on reading them out in full. I have experienced this personally, but it did not come up in the cases observed. This doesn’t mean it doesn’t happen, but illustrates the limitations of even quite a substantial piece of research.

It is clear from the study that cases involving lawyers, and cases without might involve complexity and high conflict and might become protracted. They identified certain subsets of LiP who had particular difficulty and who appear to be the sorts of LiPs that the judiciary are telling us about (and who are the most memorable for those of us who have encountered them). So, hearings involving “over-confident LIPs” were

Highly inefficient. Hearings typically (greatly) exceeded time estimates. Cases typically proceeded to a contested hearing. Enormously costly for any represented party and for the court system as a whole.

While those involving “out of their depth LIPs” generally required

Longer or additional hearings … as LIPs were unable to understand what they needed to do either preparing for or during hearings [and] were unable to present their case effectively.

The important thing to take from the study is that

Only a small minority of LIPs were able to represent themselves competently in all aspects of their family law proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process. The great majority of LIPs were procedurally (and, where relevant, legally) challenged in some way, with some having no real capacity to advocate for their own or their children’s interests. A wide range of personal vulnerabilities were identified with around half of those observed experiencing one or more vulnerabilities which often added to their difficulties in self-representation and in some cases defeated their attempts to do so. A significant number were also trying to handle quite complex cases.

and

LIP cases appear less likely to settle and may require longer hearings and more hearings. A larger quantitative dataset is needed to test this finding conclusively.

The National Audit Office appear to be happy to operate on an assumption that LiP cases take “50% longer”, see their evidence to the The UK’s compliance with the UN Convention on the Rights of the Child – Human Rights Joint Committee, and see their report on the topic of Implementing Reforms to Civil Legal Aid, in which they were critical of the Government for not factoring in the additional cost burden of cutting legal aid in estimating the economies. From that report however, it appears the NAO assumption is drawn from judicial opinion – taken from the Judicial Executive Board submissions to the Justice Committee’s review of the impact of LASPO, where it was said that

The Judiciary’s perception is that cases which may never have been brought or been compromised at an early stage are now often fully contested requiring significantly more judicial involvement and causing consequential delays across the civil, family and tribunals justice systems. Figures indicate that take up of mediation and ADR services have reduced meaning more cases are dealt with by the courts and tribunals.

and

 In the family courts the judicial perception is that private law appointments where both sides are unrepresented typically take in the region of 50% longer, so the courts are less able than hitherto to deal with the same volume of work and by an appreciable margin.

 Time estimates for LiP cases are notoriously unreliable rendering back to back listing (the key to achieving timely performance) impossible.

Those few lines then, appear to be the source of the 50% statistic (not that last point about unreliable time estimates when considering the ad hoc statistical release from November 2014 mentioned above).

This is not an exhaustive exposition of all judicial comment upon the question of litigants in person. There have been numerous remarks, interviews (and even Court of Appeal judgments) since LASPO in which judicial angst surrounding the topic of LiPs has been voiced. But it is apparent that whilst there is broad consensus amongst judges, there is some apparent tension between those views and the quarterly court statistics, which show case duration.

However, the only available figures on case duration are the average figures – the raw data from which the averages are drawn is not. These releases generally show a trend of cases with two lawyers and a represented respondent only taking longest, with cases involving a represented applicant taking the shortest amount of time on average (11.8 compared to 15 weeks for private law cases with no lawyers in the most recent release for Oct-Dec 14 here). So those statistics alone are pretty impossible to interpret in isolation. We can see that the mean and median figures shown on the statistical tables are quite discrepant in places – I would like to see the breakdown of individual cases that make up those averages.

The archetypal Litigant in Person – the vexatious or very very difficult one – looms large in the psyche of our judges and lawyers. It is possible that cold hard statistics will show us to have remembered these determined and defiant characters as more commonplace than in fact they are because they occupy such a space in our collective imaginations – the lawyers bogeyman if you will (although I think it is pretty clear that the troublesome LiP is neither a collective hallucination or completely apocryphal). We know that the LiP of today is not necessarily cut from the same cloth as the old “elective” LiPs. Today most LiPs are in person through force of circumstance. Perhaps this means they are less likely to be intentionally troublesome, but it may also mean they are more likely to include those who are just not equipped with the necessary skills or confidence to do themselves justice. The truth is that the 2014 Trinder research highlights the complexity of the issue – and although the research does not currently allow us to be definitive about it, it is pretty well apparent that there are large numbers of LiPS really struggling to access justice and that judges are going to have to work harder and longer to make that happen. 50% may be a guesstimate but its as good a guesstimate as any (it certainly matches with my own experience), and I don’t see the MoJ commissioning any research to debunk it any time soon.

[Post script : thanks to Judi for pointing out the Justice Committee report : Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which has lots of useful material within it, including commentary from the President of the Family Division and Lord Dyson, all consistent with the thrust of the above. And a cameo appearance from one Lucy Reid [sic], solicitor [sic] ;-/]

Thanks to the Transparency Project (@seethrujustice), in particular Paul Magrath (@maggotlaw), with pointers for this post.

Resolution Guide to Good Practice for Family Lawyers on Working With Litigants in Person ?

Resolution recently published a guide for its members to working with LiPs, an increasingly common phenomenon. You can read the guide here.

David Burrows beat me to posting a review of it, and he was rather underwhelmed with the “homely guide”.

It is addressed to the lawyers who are expected now to liaise with LiPs, but its utility will not be just for lawyers but also for LiPs, McKenzie friends and indeed judges and represented parties – in both managing expectations of contact with a lawyer who is the bearer of duties to both client and court, but also in calling to account those who do not meet reasonable standards of courtesy and helpfulness – although the “you” is plainly the lawyer, the language and tone suggests the writers were alive to the fact that this document would be read by lay parties as well as Resolution members. It might in some circumstances be seen as something of a stick with which to beat shirty lawyers, although how effective a stick it might be is less clear. It will most often be a useful reference point when dealing with a LiP who has unrealistic expectations of a lawyer – I imagine that Resolution members will send a LiP to this document to help explain why they can’t (for example) correspond with a McKenzie friend or respond to every email in.

What is interesting about this document is that, whilst its contents will be no brainers to many practitioners, its tone represents a significant shift from documents produced not so very long ago (I am thinking of the Law Society Practice Direction from 2012) from defensive (how to reduce risk and complaint by minimising contact with LiPs) – to reflective and pragmatic (how to progress cases and achieve resolution by trying to find ways of working cooperatively with LiPs) – and from seeing contact with a LiP as in conflict with the lawyer’s duty to ones own client to seeing it as an expression of both the lawyer’s duty to the court and to the client. By way of example take this mealy mouthed snippet from the Law Society document : “Accordingly, whilst it may be legitimate for you to refuse to do so there could be circumstances in which the interests of your client and the court will be furthered by providing some level of assistance, for example in avoiding unnecessary costs being expended in dealing with a misguided initiative“, which seems a rather outdated expression an old skool “bare minimum” philosophy, only two years down the road. It’s modern and more relaxed descendant is perhaps seen in phrases like this in the Resolution document “take care not to give unsolicited legal advice to the litigant in person but think about what information might be helpful for them, including providing links to websites or organisations that may be able to offer them help or explanations about the law or procedures.”

This document is big on encouraging practitioners to think at all times about how their words and actions may be perceived and (mis)understood and as to the need for them to engage with a justice system where LiPs are as much the norm as lawyers. About time too. Many – I hesitate to say most – many practitioners, both bar and solicitor, make real efforts to deal proactively and constructively with LiPs but even those of us who are alert and who make efforts do not get it right all of the time, and there remain still too many who just turn their face away and see LiPs as the problem, and as someone else’s problem at that.

There are a few glitches in this document, for example the text at the bottom of page 8 seems to be cut off in its prime, and some of the hypertext links don’t work. But overall I think it is a helpful reminder of good practice and a useful document to signpost and refer to from time to time. David Burrows complains that it is shallow and lacking in detail – there are undoubtedly difficult topics it does not attempt to cover but the topics (rightly) identified by Burrows are by and large questions as yet without answer.

In future it might be useful for Resolution to publish a version of the guide addressed to Litigants in Person.

Private Law – one swing and a roundabout

The downturn in private law applications is definitely starting to look like a trend. Another month of figures lower than the same time last year (9%). And take a look at the table here – there is clear blue water between that red line (this year) and any other year shown.

On the plus side, the Gudanaviciene JR has been upheld. This was a batch of immigration cases, but the key point for our purposes is that the Lord Chancellor’s guidance on s10 LASPO has been held to be unlawful. As reported in the Telegraph, the Ministry remains unrepentant, saying through a spokesperson that “We continue to believe that the exceptional funding scheme is functioning as intended. Its purpose is to provide funding where it is legally needed.”