REUTERS | David Gray

The vexing issue of litigants in person: part 2: what can be done?

The problem has been acknowledged

The need to find a solution for dealing with the increasing numbers of litigants in person (LiPs) has been recognised at a high level:

  • In the introduction to his Civil Courts Structure Review interim report (paragraph 1.18.5), Briggs LJ noted that the significant withdrawal of legal aid funding, coupled with the “ever-increasing complexity both of law and of civil procedure”, means that a growing proportion of court users are litigants in person who are “gravely hampered” in making use of the courts for vindication of their rights.
  • Several other senior members of the judiciary have also identified the complexity of the current rules, as an issue that needs to be tackled. For example, in his speech “Delay too often defeats justice” (at the Law Society, Magna Carta event, 22 April 2015), Lord Dyson referred to the long “quest” for simpler rules, and the common complaint that the Civil Procedure Rules (CPR) have “grown like topsy, with its collation of rules, practice directions (PDs), protocols, guides and practice statements”. He observed that there must be room for rationalisation, and referred to the Scottish Civil Justice Council’s project to simplify its procedural rules. Whilst recognising that some say that, if the rules are too simple, there may be “interstices which the court will have to fill” and this will encourage procedural litigation, he was also mindful of the fact that a high proportion of litigants using our civil courts are self-represented. He noted:”To say that for the majority of them the CPR are daunting must be an under-statement.” Lord Dyson also referred to a new civil procedure code in Brazil that allows parties to agree to modify the procedure as it applies to their claim, and suggested that it was worth considering whether to permit parties, with the court’s consent, to agree to opt out of certain aspects of procedure to enable their claims to be dealt with more speedily.
  • A Civil Justice Council working group is seeking to develop an improved strategy towards litigants in person. Different sub-groups are looking at web presence, early initial legal advice, and public legal education, and there is a wish to see better co-ordination of effort and resources in assisting LiPs.
  • Last summer, the Bar Council, CILEx and the Law Society, working together, published new guidelines offering practical advice for lawyers facing litigants in person in the civil courts and tribunals. Interestingly, paragraph 41, which refers to the courts’ duty to further the overriding objective by “actively managing cases” notes:

“Achieving the overriding objective might require a judge to offer a degree of latitude to a LiP whose preparation and presentation of case does not conform to the court rules, provided that this does not compromise due process.”

Tearing up the rule book?

In his interim report, Briggs LJ was less than optimistic of a healthy level of access to justice for litigants in person under the current CPR, noting:

“For as long as the procedure of the civil courts is purely adversarial, and governed by a complicated code intelligible only to lawyers, the valiant efforts of judges, voluntary agencies and pro bono lawyers will only be, at best, a palliative.”

The Online Court

For “low value claims” (up to about £25,000), at least, the great hope is that the “Online Court” (as it is currently referred to) will provide the answer.

In a previous blog, last summer, we noted the growing tide of support for such an approach – largely to tackle the issue of increasing numbers of litigants in person by simplifying procedures.

Briggs LJ’s interim report (paragraph 6.21) noted that:

“The rules for the OC will need to be constructed from scratch, as a self-standing set of rules designed from the outset to be understood by litigants without lawyers.”

Briggs LJ’s final report provided an update. A large majority of those who gave feedback preferred the option of the online court as a separate court with its own rules. The Ministry of Justice (MoJ) has also reached its own policy view in favour of separate rules and procedure for the Online Court, governed by a new, separate, rules committee, and is preparing primary legislation to that end.

The main driver for this is the view (endorsed by Briggs LJ) that:

“… nothing less will bring about the change from an excessively lawyerish culture necessary to enable those without lawyers on a full retainer to navigate the court’s processes”.

The MoJ has not yet decided whether the Online Court should be part of, or separate from, the County Court, but Briggs LJ considers it to be “very important” that the Online Court should be a new and wholly separate court in order to bring about the necessary culture change.

Starting with a completely blank sheet of paper is a daunting prospect. Interestingly, Briggs LJ envisages not just new rules, but a new rules committee, separate from the Civil Procedure Rule Committee, which will be charged with making rules not only for the Online Court but also for LiP oriented courts and tribunals across the whole field of civil, family and tribunals. The new committee will include members with skills in knowledge engineering, IT and subject-matter expertise, rather than “a predominance of judges and lawyers” (which the current CPRC has).

This is going to be a fascinating space to watch, and raises some interesting questions including:

  • How far can the rules be “boiled down” to simple statements?
  • How will genuine procedural ambiguities be resolved expeditiously?
  • Will it really be possible to avoid what Briggs LJ has referred to as “encrustation” of the CPR in case law and supplemental guidance, in the context of the new rules?

Claims over £25,000

Even if the online court is delivered by 2020 (which it must be, before any unspent funds revert to the Treasury) – and not derailed by the Brexit decision – the “elephant in the room” is the question of how the CPR might be simplified.

There seems to be much to recommend a full-scale review of the “mainstream” civil litigation rules, with a view to achieving simplification.

That said, the difficulty of tackling established rules “encrusted” in case law and with other guidance, is clear.

“Reducing the CPR” was a topic addressed during the CPRC open meeting on 17 June 2016. It was agreed that the CPRC would start in a “relatively modest” way by reviewing CPR 12 (Default judgment) and 14 (Admissions) (to be taken together). After that, it will look at CPR 3 (Case management) and CPR 39 (Hearings) (which will be reviewed separately). Next year, it hopes to move on to some “more challenging” rules. This is encouraging, but it seems unlikely that it will result in a tearing up of the rule book.

Another issue is the current multi-tiered approach (with CPR rules, guidance in the associated PD and the relevant court guide, plus, in some cases, ad hoc local directions – as well as what Briggs LJ refers to as the “encrustation by authority”).

A party with a case in the Queen’s Bench Division, for example, will need to look at the CPR and relevant PD, the White Book, the Queen’s Bench Guide and, possibly, also keep in mind various pilot schemes. A litigant in person will also want to look at the guide for litigants in person.

There is clearly a need for some procedural differences, reflecting the different categories of cases in the divisions but, equally, there must be aspects of the court process on which a uniform approach, applying across all divisions, could be agreed, thus avoiding the need for multiple forms of guidance.

A radical suggestion perhaps, but is there really any reason why the different court divisions could not work together to identify good practices, and agree some standard approaches for matters such as court bundles and skeleton arguments? It would be an excellent starting point.

In terms of the complexity of the CPR, ironically, it seems possible that additional rules might provide a solution! The Shorter and Flexible Trials Pilot Schemes currently operating in the Rolls Building Courts, rather like the Brazilian approach referred to by Lord Dyson, allow parties to streamline procedures and to adapt them to the needs of their particular cases.

Although initial engagement has been slow, this may well be the way forward. Rather than tearing up the rule book completely, it allows parties to adopt a “pick and mix” approach, making the rules work for them, rather than allowing the rules to dictate the approach (subject to the approval of the court).

A challenge, where litigants in person are involved, will be ensuring that they understand the implications of any proposals. Even so, the concept of more bespoke rules is an interesting development to keep an eye on.

Practical Law Dispute Resolution Beverley Barton

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