As we mentioned in a previous post, a report has just been published which looks at Litigants in Person, reasons behind self-representation and the demographics who are acting in person. It is a comprehensive study, which takes many different kinds of scenarios into account, including cases where both parties are LIPs, one party is a LIP, and where a LIP has received conventional representation in the past or during one or more periods of their case.
It’s a large report, so we’ve pulled out a few of the findings and highlighted them in this post. It’s worth bearing in mind that this research was carried out prior to the legal aid changes implemented by LASPO coming into effect, so to some extent this research is already in need of updating. Attempts at guessing the trends we now see inside the courts post LASPO have been included too, and are in the main correct.
So what does this report tell us?
Well, the key findings were as follows:
- The majority of LIPs in this sample were in person because they were ineligible for or
had been unable to obtain legal aid, but could not afford legal representation.
- Only around one-quarter were in person because they had wholly or partially chosen to be so.
- Around half of LIPs had had legal representation or advice at some stage during their
- Almost all LIPs had difficulties with court procedures and the legal issues involved in
their case, and around half were personally vulnerable in some way, which made
negotiation of the legal and procedural requirements of self-representation more
- LIPs appeared no more likely to bring unmeritorious or serial applications than
- Problems created by LIPs included a refusal to engage with proceedings, and less
commonly, aggressive and disruptive behaviour.
The report goes on to talk about gender-related issues in self-representation, reasons for acting in person and the different types of people who do so, and looks at legal aid, cost, capacity, LIPs’ own struggles with the court process and more. It is a very good report in that it manages to encapsulate all of the issues in one place, as well as dispelling certain myths which have given LIPs a bad name (such as the persisting view that they are in the main vexatious litigants – this report puts that notion to rest), but none of the data or conclusions will be a surprise to those of us working inside the system advising and supporting LIPs (there is also a dedicated section about McKenzie Friends on page 93).
However, in the spirit of collecting this data to inform the sector and help to shed light on LIPs, this is a great step forward and we thoroughly recommend reading this report when you have a moment.
For those of you reading on the fly, we’ve added a summary from the report and recommendations on improving the role of judges in these cases, below:
The research team observed 151 cases involving 165 litigants in person. LIPs were more
likely to be respondents than applicants, and male LIPs were more likely to be applicants
than female LIPs. Cases in the County Court and financial remedy proceedings were more likely to have one party in person while cases in the Family Proceedings Court were more likely to have both parties in person.
The major reason for self-representation was inability to afford a lawyer, with only around one quarter of LIPs indicating that their appearance in person was wholly or partially a matter of choice. Some appeared in person at one or more hearings because difficulties with legal aid resulted in their practical inability to secure legal representation. In interviews, those in person for reasons of cost or difficulties with legal aid invariably felt they were disadvantaged by not having a lawyer to represent them.
Over half of the LIPs observed had had legal representation at some stage during the current proceeding and/or in previous family law proceedings. Patterns of partial representation included having a lawyer to begin with but losing them during the proceedings, having a solicitor providing assistance out of court but not representing them in court, and commencing proceedings in person but then obtaining legal representation. These different patterns affected LIPs’ expectations of the court process and support needs.
Only a small minority of LIPs were able to represent themselves competently in all aspects of their family law proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process. The great majority of LIPs were procedurally (and, where relevant, legally) challenged in some way, with some having no real capacity to advocate for their own or their children’s interests. A wide range of personal vulnerabilities were identified with around half of those observed experiencing one or more vulnerabilities which often added to their difficulties in self-representation and in some cases defeated their attempts to do so. A significant number were also trying to handle quite complex cases.
LIPs may create problems for the courts by reason of non-appearances, refusal to engage with proceedings, or, less often, violent and aggressive behaviour. While non-appearances may be quite common, the reasons for apparent resistance to court proceedings, as for violence and aggression, may often be related to litigants’ vulnerabilities. Unmeritorious and serial applications did not appear to be brought any more often by the LIPs in the sample than by represented parties, although having to respond to these applications was another vulnerability faced by some women LIPs.
Best practice in supporting LIPs
- Framing the subject matter of the hearing.
- Explaining the process that will be followed or guiding the process.
- Eliciting needed information from the litigants by:
- Allowing litigants to make initial presentations to the court
- Breaking the hearing into topics
- Obviously moving back and forth between the parties
- Maintaining control of the courtroom
- Giving litigants an opportunity to be heard while constraining the scope and
length of their presentations, and
- Giving litigants a last opportunity to add information before announcing a decision
- Engaging the litigants in the decision making.
- Articulating the decision from the bench.
- Explaining the decision.
- Summarizing the terms of the order.
- Anticipating and resolving issues with compliance.
- Providing a written order at the close of the hearing.
- Setting litigant expectations for next steps, and
- Using nonverbal communication effectively