Own goals

The stupidity of this government’s attempts to save money by denying ordinary people legal representation is starkly demonstrated in a short judgment handed down by the Court of Appeal yesterday.

The case involved litigants in person i.e. people who are unrepresented normally because they cannot afford to be.  Plainly, there were problems with the document bundles in particular, and Lady Justice Black took time out to say this:

“This case is illustrative of an increasing problem faced by this court.  More and more litigants appear in front of us in person.  Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear.  The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served...... the bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark on their preparation for the hearing just days before it is due to start.  The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

The court has no extra resources to respond to these added challenges.......if it is to be able to deal properly with an appeal in care proceedings and to do so speedily.....then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles...... it is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 04 April 2014.  Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult.”

For those who aren’t involved in this sort of thing every day, let me tell you that the preparation of bundles for court hearings, particularly appeals (where routinely the history of proceedings in one or more courts below is being considered) is a vitally important task. 

It is not just a matter of throwing everything you can find in to a lever arch folder and sending it to the court.  It involves deciding what is relevant and what isn’t, grouping the documents, putting them in a logical order, dividing into sections, making sure they are technically admissible, that they are legible, that they are numbered and bound in a way that makes them secure but accessible.

They need to be agreed if possible between parties with competing interests and identical copies need to be prepared for (usually) six or more people involved in the process, so that they are all looking at the same thing and not wasting time getting there.

So here is a situation where because those who ought to be dealing with the task can’t, it falls on the publicly-funded local authority to do it.  That means more expense in that task alone.

Own goal, Mr Grayling!

Of course, the deficiencies may not come to light until very late in the day in which case there will be adjournments or hearings taking far longer than they ought to because of the unavailability or poor management of the document bundles.  More expense results.

Another own goal, Mr Grayling!!

Remember, we are only talking about bundles of documents here.  We haven’t touched upon all the other difficulties that arise by virtue of people not being represented.

Even with knowledgeable and capable parties, perhaps employed in other professions, who make a good attempt at presenting the case, there will be considerable further time spent because they are simply not aware of the procedures.  It’s DIY enthusiast (perhaps not the best term) versus skilled tradesman.

In the worst scenario, there are parties who have no clue where to start, don’t want to be there and whose only mission in life is to make that clear to everybody else involved in the process. They have no lawyer to tell them and keep telling them that it is in their best interests to do this and that and to lead them skilfully through the process.  Consequently it takes judges and other parties longer and longer to deal with these matters.

Yet another own goal, Mr Grayling!!!

And this is just the short term.  What does the longer term hold?

You can see in this short judgment extract the expectation that the government funded party will do the work, even though it is not their responsibility.  It will not be long before courts take the “government” out of that classification and extend this routine requirement to all “funded” parties.

In other words, the burden of doing all the work, regardless of which side ought to be doing it, will fall on the party who happens to be able to afford representation to run the case.

That will happen regardless of whether they can only just afford to do it, how much of a risk they are already taking in short term cash flow or in the long run.  They will be expected to pay to run the case, not just for themselves but for the other side.

Lawyers acting for parties who find themselves having to prepare half of the opposition’s case will have to charge more.  Many of their clients will then say they cannot afford it, and quite possibly that they are not prepared to fund it as a matter of principle.  What will that generate? 

Yet more litigants in person.

And another own goal.  It’s becoming a landslide, Mr Grayling!!!!

The cynical amongst us will of course say that this represents another deliberate smashing of the altar with the long term plan that the adversarial system, where the parties before the court set the pace and have their say, will become unworkable.

But that is another, more sinister, story…