A while ago I made a Freedom of Information Act request to get some stats from the court service about litigants in person in private law matters. The request and the response I received can be found here, and my summary of the figures is here. It shows the position as at end Jun 2011. I’ve now made an updating request and have received the new set of stats as at end Sept 2011. The response can be found here.

Of course this is two snapshots only a quarter apart and there are limitations to how much one can read into the figures. But its interesting to do a little analysis of what the available material tells us, because the whizzy Open Justice website is silent on private law proceedings and the stats published on the Justice website do not refer to the numbers of litigants in person. Quel surprise. (I suppose the domain www.selectivelyopenjustice.gov.uk was too unwieldy.)

I wanted to compare the two sets of figures for two reasons : to see if they can tell us anything about any fluctuations in the numbers of litigants in person and to see if they can tell us anything about the impact of litigants in person on case duration. I’m no statistician so I’d welcome input from those with the ability to analyse these figures properly, but here goes.

As at 30 June 2011 1 in 5 of all private law children cases at all tiers of courts involved one or more LiP applicant (20%). This was unchanged as at 30 Sept 2011.

As at 30 June 2011 43% of all private law children cases across all tiers of courts involved one or more LiP respondent. This rose to 48% by 30 September. There were increases in the proportion of unrepresented respondents across all tiers of court

The mean and median case duration of private law cases dropped markedly across all tiers of court between June and September 2011 (e.g. mean case duration in the County Court went from 63 weeks to 44 weeks). Taken at face value this suggests an increase in efficiency, perhaps because of increased capacity to deal with cases as numbers drop – but there is an explanation provided in the narrative to the response which makes clear that this is as a result of changes to the way data is collected. It appears that the most recent figures are the more reliable, as previously cases were counted as “outstanding” for the purposes of case duration if they had been left open on the case management system, even if they were not in fact live. This also accounts to some extent to a drop in the number of cases outstanding. However, the most recent stats available on the Justice website confirm that the number of such cases issued is also on a downward incline.

The most recent figures show that in the FPC cases where either all Applicants or all Respondents were unrepresented cases a shorter mean duration than those involving lawyers (this is in common with the June stats). However, cases where all Applicants were represented had the same case duration as those where no Applicant was represented, whereas cases where only some Applicants were represented took longer (this category must be comprised entirely of cases where there are cross or multiple applications). And cases where only some Respondents were represented took the longest (this category must be comprised entirely of cases involving more than one Respondent), with cases where “all” Respondents were represented (including those where there is just one Respondent) showing a lower mean duration (but still higher than cases involving no represented respondents). To me, this tends to support the proposition that more complex multi-handed cases take longer, and that they take longer still where there are litigants in person involved.

In the County Court, which is the tier of court with the greatest statistical base, cases involving no represented Applicants and no represented Respondents took longer on average (mean) than those involving either all represented Applicants or all represented Respondents. This was a feature of the June 2011 figures. As with the FPC stats the tranche of cases where some Applicants were represented (by their nature multi-handers) had the longest average duration (but cases where some Respondents were represented were the quickest by mean, but comparable to of equal average duration to the cases with no represented Respondents by median). Again, the discrepant patterns as between mean and median in the County Court reflect, I think, the small numbers of intractable cases, which may be of unusually long duration, and which may involve more than two parties because children have been made parties) and these throw the stats askew.

Figures for the High Court are difficult to interpret as the numbers are quite low and a small change produces a massive shift by proportion. What was notable was that in 65% of private law children applications pending in the High Court as at 30 September involved no Respondent was represented (and in almost 70% of cases at least one Respondent was unrepresented – a 17% rise since June).

So, what does it tell us overall? Well it hints to me of a crisis on the horizon. The proportion of Litigants in person is rising sharply. We can’t cross reference the separate tables to identify the proportion of cases where all parties are unrepresented if 1 in 5 cases involves unrepresented Applicants and approaching 50% of cases involved unrepresented Respondents it’s likely to be a material proportion (which certainly chimes with my experience). It would be extremely illuminating to see average case duration for cases involving no represented party.

These figures also suggest that those cases that take longer are often those that involve litigants in person. It follows that an increase in the numbers of the unrepresented such as is inevitable if the Legal Aid, Sentencing and Punishment of Offenders Bill is passed, is bound to result in an increase in case duration – because of course the removal of private law cases in general from the scope of legal aid will be indiscriminate – whilst a proportion of those unrepresented parties represented in the stats at present will be those who genuinely do not need representation (for example because their case is straightforward or because they do not contest the application), the proportion of those who would benefit from representation but who cannot access it is bound to increase if legal aid is withdrawn from this area of work.

Whilst the Government is very keen on “transparency” (in the form of a few selective statistics) where it concerns political hot potatoes like care proceedings (particularly where such transparency can be used as a stick with which to beat the judiciary), private law proceedings are as ever, the forgotten sibling. We know that this Government has a penchant for trivialising private law disputes, but of course an explosion in the numbers of the self representing in private law proceedings, which far outnumber the volume of public law proceedings, will have a knock on effect on the capacity of the courts to manage public law proceedings, which the Government purports to be much more anxious about.

This is the kind of thing that the Government should be scrutinising anxiously, particularly given the acknowledgments in its own Impact Assessments and Green Paper as to the lack of research into the impact of an upsurge in the numbers of litigants in person upon the operation of Her Majesty’s Courts and Tribunals Service.