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.�
The number of litigants in person has increased in recent years.� Professor John Baldwin found that �Do-it-yourself representation in civil justice has become the order of the day in the 1990s, and, in consequence, large chunks of the business of the county courts are being disposed of without the participation of lawyers.� (Baldwin, Monitoring the rise of the small claims limit: litigants� experience of different forms of adjudication LCD Research Series 1/97, December 1997, p5)�� Some sue in person through choice.� Others do so because they are unable to obtain legal representation.� Litigants in person are certainly the norm in small claims track cases.� They are far from the exception in other county court lists � in the average county court interlocutory applications list, there are probably more litigants in person than lawyers.� The same often applies to landlord and tenant possession claims.� Not surprisingly as the value of claims increases, the number of litigants in person decreases.� They remain the exception in the High Court, although there is anecdotal evidence that as restrictions on the provision of public funding have increased, so has the number of unrepresented litigants in the Royal Courts of Justice.
Is it right though to see litigants in person as a problem for the courts?� Is not the opposite true � i.e. that courts, with procedures originally designed by and for lawyers, are a problem for litigants in person?� As Lord Woolf said �Only too often the litigant in person is regarded as a problem for judges and for the court system �� The true problem is the court system and its procedures which are still too often inaccessible and incomprehensible for ordinary people.� (Access to Justice, Interim Report p119) Who are the most important people in any civil court?� Not counsel, solicitors, court staff, or even the judges � the most important people are the litigants themselves whose interests the courts were created to serve.
Lord Woolf entitled one section of his Interim Report� �Assisting the litigant.��� Is that not the purpose of any civil justice system?� He called for judges to take a more pro-active role in relation to unrepresented litigants and for judges to �adjust their approach so that there is no suggestion that they are being treated as an exception or even a nuisance�. (Access to Justice, Interim Report� p99, and� p119)
How should this be done?� First, huge improvements have already been made in court procedures.� The Civil Procedure Rules 1998 are written in simpler language, which it is possible for most lay-people without legal training to understand.� Unnecessary technicalities have been removed.� In particular CPR 3.1(1)(m), enables us as judges to take any step or make any order to further the overriding objective �� a provision that means that it is rare for a judge to have to say that it is impossible to take a particular step which would achieve justice because of the absence of a procedural jurisdiction.� Similarly CPR 3.10 provides that an error of procedure does not invalidate any step taken and gives the court power to remedy the error.
The main difficulty is the complexity of the substantive law of England and Wales . Although lay people may be very capable of putting forward facts, it may be unrealistic to expect them to be aware of and understand legal complexities without good legal advice �� and when they do understand it, they may find that it does not always conform with what they think is �justice�.� Simplification of the substantive law would be the most significant step that could be taken to help litigants in person, and indeed save costs for those who are currently legally represented.� The recent Law Commission consultation paper Renting Homes, 1: Status and Security, (Law Com. No. 162, April 2002) which may be the first stage in the creation of a comprehensive housing code, is an important example of what should be done.
Simplification of the substantive law can though only be a long term aim.� In the shorter term, it is hard to over estimate the importance of the availability of advice to litigants before they decide to issue or defend claims. (Access to Justice, Interim Report� pp119 � 129) The existing network of Citizens Advice Bureaux, community organisations and solicitors do give such advice.� There is though a recognised gap between the needs assessment and the provision of services, particularly in relation to debt and consumer matters. (See e.g. Community Legal Service, Consultation Paper Modernising Justice 1999).� It would be helpful if steps were taken to improve the quality and scope of advice and to improve the knowledge of the public about such services. (See e.g. Hazel Genn Paths to Justice: What People Do and Think About Going to Law 1999.)� Although the Attorney General has taken steps in recent months to encourage the expansion of pro bono services by solicitors and members of the Bar, the impact of pro bono work for county court litigants remains limited.� In addition, much could be achieved if more litigants took advantage of existing mediation and Alternative Dispute Resolution services.
However, we, as judges, should also be examining our judicial attitudes towards litigants in person and how we conduct such hearings.� As Lord Woolf said
�Conducting a hearing at which one or both parties are unrepresented presents a difficult challenge to judges who are more used to hearing cases presented by legally qualified advocates.� Many judges are anxious to assist an unrepresented party in identifying the relevant issues, but there has been a traditional reluctance to �enter the ring� for fear of compromising the judges� role as impartial adjudicators.� (Access to Justice, Interim Report� p130. See too p131)
He suggested that all judges who deal with cases involving litigants in person would benefit from training and guidance.
Much depends upon the individual litigant in person.� Some may welcome being directed to address particular issues.� Others may resent being diverted from carefully prepared notes and may regard the kind of question or interruption that would be perfectly normal if put to a professional advocate as judicial rudeness and, probably wrongly, an indication that the judge does not want to listen to litigants in person.�� Personal experience may well show that judges who interrupt litigants in person, albeit for the best of motives, prolong hearings, whereas those who simply listen, smile and at the end ask an unrepresented party whether s/he wishes to say anything further not only preside over shorter hearings but also give litigants in person the satisfaction of knowing that they have been listened to.�
All this may be second nature to experienced judges, but do we all, whether we are experienced full-timers or inexperienced part-timers, always consider the following points when presiding over cases with unrepresented parties?
�������� It is even more important to pre-read and to be familiar with unrepresented parties� cases before hearings start.
�������� Time should be taken at the beginning of each hearing to explain the procedure� - the order of evidence, the purpose of cross-examination etc.
�������� Clear and simple language should be used whenever possible.� Sometimes it may be easy to find a simple alternative.� We, as judges, may be used to terms such as �after the short adjournment�, or even �after the luncheon adjournment�, but would it not be clearer to litigants in person if we used the kind of language that we use in normal speech � e.g. �after lunch�?� What is more difficult and challenging, but even more important, is to reduce complicated legal concepts to plain language.
�������� It may help to depart from the conventional order of hearings.� For example defendants appearing in person when asked if they want to cross-examine the claimant, often fail to ask questions but instead start to state their own case.� Cross-examination does not come naturally to many litigants in person.� This problem can be resolved in some cases, by hearing all oral evidence in chief (including that of the defendant) before any cross-examination.� Provided that the hearing is conducted fairly, the provisions of CPR 3.1(1)(m) are surely wide enough to enable this to happen.�� If there is a complex case which can be divided into discrete self-contained parts, it may help to hear evidence from both sides in relation to each point in turn� (e.g. a claim for an unpaid builder�s bill, where the defendant has complaints about a number of different items, or in landlord and tenant cases where a deposit has been withheld because of a large number of different breaches of the tenancy agreement or where there are challenges to different items of expenditure which make up a service charges claim.) It may even help, at the end of a hearing, if it appears that a litigant in person is about to lose, to give him or her the last word.� �Mr X, you would not normally have the right to say anything more now.� I understand the points that you have already made, but is there anything else that you have not already said that you would like to say to me before I make a final decision in this case?�� Not only is that being fair to litigant in persons � it also makes it very hard for them to appeal on the basis that the judge prevented them from putting their case.
�������� It may be necessary for judges to probe the evidence of a represented party by asking searching questions where an unrepresented party shows that he or she is unable to cross-examine.� In a recent Times article a litigant in person complained that the procedure was unfair (even though she won) because the judge allowed her to be cross-examined at length, whereas her represented opponent was not cross-examined. (The Times 13 August 2002, Section 2, p23, Why small is not beautiful)
�������� It is important that judges are seen to treat litigants in person equally with legal representatives on the other side.� It may be that counsel know more about the law than litigants in person� (there are occasionally striking exceptions), but that is no reason why judges should appear to defer to them.� Unrepresented parties should always leave court feeling that they have been treated with respect, and without being patronised.� There is no reason why judges should not adopt the same manner and tone of voice to both represented and unrepresented parties.
�������� Above all it is vital to be seen to be listening to what litigants in person have to say, and only to interrupt if it is essential to do so.� Unrepresented parties are entitled to their day in court.� Many prepare what they intend to say carefully and feel cheated if they cannot say things that they think are central to their cases.� It may be that interruptions are misinterpreted as an indication that a judge has not understood what has been said and lead to repetition.� Even if, after considering facts and law, we reach the right decision, we have failed in our judicial duty if a litigant leaves court and tells his or her neighbours �I lost because the judge didn�t listen to me.�
As the Woolf reforms bed down, and judges become familiar with Human Rights points, one of the most important challenges now facing county courts is the increasing number of litigants in person.