Appeal court judge ‘horrified’ at number of litigants without lawyers

23 November 2014

A court of appeal judge has said she is “horrified” at the number of unrepresented litigants and warned that the delays caused will “clog up” the justice system.

Dame Elizabeth Gloster’s forthright comments were delivered at the launch of a report that exposed low morale within the legal profession and found that 83% of lawyers believe justice is no longer accessible to all.

The study, by the law firm Hodge Jones & Allen, interviewed more than 500 senior solicitors and barristers, concluding that nearly two-thirds (61%) fear there is little trust in the fairness of the judicial process.

Entitled Innovation in Law, the report assessed changes brought about mainly through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) – which sliced £350m a year out of the civil legal aid budget – and considered ways in which the system might be improved.

More than 80% of the lawyers said the situation was worse than five years ago, 87% believed that wealth is a more important factor in access to justice than it previously was and 79% said increases in court fees were making it harder for people to bring cases. As many as 69% of the lawyers questioned said they would not recommend the legal profession as a career.

In a debate in London on the findings, Gloster, who was appointed to the court of appeal last year and whose experience is chiefly in commercial law, said: “I’m horrified at the number of litigants in person [LIPs]. We are trying to provide them with [help]. The large number of LIPs leads to delay and is going to clog up the system. Cases with unrepresented litigants take longer.”

As many as two-thirds of cases working their way through the family courts now involve at least one side who has no lawyer to provide help, according to the family law organisation Resolution.

Gloster welcomed the recent £2m funding announced by the family justice minister, Simon Hughes, to help unrepresented claimants but added: “I wouldn’t recommend anyone go to the publicly funded bar or the criminal bar.

“When I joined the bar, people said go to the criminal bar: ‘That’s where the money is.’ Why are criminal lawyers not paid a decent wage [now]?”

She acknowledged, however, that life at the bar hadn’t always been well rewarded, recalling that: “I had to work as a waitress in my first year before the fees came in.”

The former director of public prosecutions Sir Keir Starmer, who hopes to be the Labour parliamentary candidate in the London seat of Holborn and St Pancras, told the conference that: “Legal aid has to be restored for some areas. For example in welfare benefits.

“A large number of [benefit tribunal] decisions are wrong. The internal mechanism for correcting it is almost impossible. If your benefits are taken away it’s a really serious issue.”

Relying on lawyers who gave their time for free was not the way to restore access to justice, he said, adding: “You can’t just use pro-bono lawyers to fill the gap.”

On the computerisation needed to modernise the criminal justice system, Starmer said there were too many incompatible computers system used by the police and courts. In some cases, he said, there was also reluctance to change practices. “We have had some judges who say they don’t work digitally,” he explained.

Earlier this month, the lord chief justice, Lord Thomas, welcomed the investment in new technology promised by the Ministry of Justice and accepted that some of the courts’ computers were “antiquated”. He added: “If that [investment] is not to go ahead for any reason at all, then in my view the justice system would face a severe crisis.”

Patrick Allen, senior partner at Hodge Jones & Allen, said: “This report raises major concerns from across the legal profession over inequality in access to justice and the introduction of a slower and more expensive processing of cases through the court.

“As a strategy, it is arguably failing its financial objective and more importantly fails the first test of any healthy legal system: the provision of justice to all.

“Many legal professionals believe the public are starting to lose trust in the fairness of the justice system and do not have the knowledge they need to represent themselves. Whilst most respondents agree on the need for increased access to legal aid to remedy this, the profession needs to move on and to look at more innovative ways so that equality of justice can be delivered.”

A Ministry of Justice spokesperson said: “A large number of people have always represented themselves in court – this happened in around half of all private family law cases in 2012 – and we provide information and guidance to help them. Judges also have expertise in supporting them, for example by explaining procedures and what is expected.

“Our legal aid system will remain one of the most generous in the world at around £1.5bn per year after our reforms have been completed. However, we have to ensure that it remains sustainable for those who need it and for the taxpayer, who ultimately pays for it.”