By Rebecca Lowe
Swingeing cuts to UK legal aid may inflict ‘extreme’ psychological damage on people forced to represent themselves in court, leading lawyers have warned.
Litigants in person (LIPs) could suffer severe emotional distress, former Chief Justice of England and Wales Lord Woolf has cautioned, as well as putting pressure on the system by clogging up the courts and increasing costs.
‘In my experience with vexatious litigants, if you dig down you will normally find there is a genuine grievance that the system hasn’t dealt with, partly because they are disproportionate in their approach,’ Woolf tells IBA Global Insight. ‘So it burns away and destroys the individual’s sense of balance. It can be extremely damaging.’
Michael Smyth, former head of Clifford Chance’s Policy and Government Affairs Practice, was awarded a CBE in 2009 for his services to pro bono work. He has similar concerns.
‘It is by no means unusual that self-represented litigants start off with one relatively good point, but, not having had professional advice at that initial stage, they go slightly off-track,’ he says.
‘Unfortunately, over the years, the good point recedes from view and they become obsessed with process and legal conspiracies. But who is to say you or I wouldn’t end up like that, subject to those kinds of pressures?’
Both Woolf and Smyth believe society owes a ‘duty of care’ to LIPs, all of whom should be entitled to free support. Yet Smyth recalls incidences of people ‘wandering into the Court of Appeal with half a dozen bulging Tesco bags full of legal papers’, despite the best efforts of volunteer groups such as the Free Representation Unit to assist them.
‘I think it’s quite hard for a judge to realise how difficult it is for a person who is not a trained lawyer to handle a grievance themselves'
Former Chief Justice of England and Wales
‘That is not a metaphor,’ he insists. ‘It is the unvarnished truth.’
The planned £350m cuts to the legal aid budget could dramatically increase the number of LIPs, industry experts have warned. According to the Royal Courts of Justice's (RCJ) Personal Support Unit (PSU), the recession has already prompted a surge: the number of their clients seeking redress at the RCJ rose by around 50 per cent from 2009 to 2011 – around a quarter of whom reported major health problems.
Ken Clarke discusses litigants in person (2:28)
Excerpt from full interview with Ken Clarke
While the nation’s poorest are being denied legal services, fresh efforts are being made by the government to encourage international tycoons to take advantage of Britain’s legal system.
Wealthy foreigners who bring their disputes to London currently generate around £3.5bn a year. The Justice Secretary, Chris Grayling, recently urged international firms to make the most of the UK’s courts, welcoming the £20.9bn that legal services in general contribute to the economy each year.
In a speech, he said: ‘The City of London is known as a global capital of finance, but it is equally a world centre for legal services.’
Grayling appears unconcerned that the UK’s best legal talent may gravitate towards lucrative commercial cases. He insists that the promotion of British legal services abroad has ‘nothing to do’ with legal aid reforms.
‘We will continue to provide taxpayer funded legal advice focused on those who most need it, such as where domestic violence is involved, where life or liberty is at stake, or where people risk losing their home,’ he comments to IBA Global Insight.
Both Grayling and his predecessor Ken Clarke have voiced doubts that the number of LIPs will increase as predicted, and have pronounced faith in the system to cope.
In a 2012 interview with IBA Global Insight, Clarke said: ‘[Judges] know how you have to handle a case with a litigant in person. The judge bends over backwards to make sure he understands the case. He has to be firm in stopping the litigant bringing all kinds of stuff which is irrelevant.’
Woolf recommends a system whereby every court has a help desk where litigants can receive professional advice. ‘The government needs to treat the legal system as it treats the health service,’ he says. ‘There is a pressing need for caring in the legal system.’
Yet, while the government must do more, Woolf stresses, the legal profession must also take responsibility. Pro bono units established by lawyers only serve a ‘very small number of cases’ and more resources are desperately needed.
Several court staff at the RCJ have been removed, while the RCJ Advice Bureau, which provides free legal advice, is struggling to cope with demand.
Unlike Clarke, Woolf believes judges can be at fault. He recalls two eminent judges from his advocacy days with very different approaches: Lord Alfred Denning and Lord Justice Megaw.
While Denning could charm the most aggrieved LIP, Megaw ‘would get irritated’, Woolf explains. ‘He was the kindest man in general, but he could be very gruff and people would go away cursing under their breath. I think it’s hard for a judge to realise how difficult it is for a person who is not a trained lawyer to handle a grievance themselves.’
For Smyth, what is needed is better public legal education, ideally incorporated into the UK's National Curriculum for schools. In July 2011, he became founding Chairman of Law for Life: the Foundation for Public Legal Education, a charity dedicated to helping people develop legal knowledge and skills.
Yet unlike the finance literacy movement, which enjoys tens of millions of pounds of government subsidies, legal literacy currently receives no direct state support.
‘Research has shown that people with even the most rudimentary knowledge about how the law works tend to have far more positive outcomes than those who have no knowledge,’ he says. ‘Such early intervention is better than cure. Some limited investment in this area might prevent the development of a litigation pathology of the type a lot of poor LIPs have further down the track.’
The financial literacy movement is currently funded by the government and banks, and Smyth concedes that the profession could do more.
‘Why don’t we do it in the same way?’ he suggests. ‘We’ll put in a bit if the government puts in a bit.’
For Woolf, who penned the Access to Justice Report in 1996 in an attempt to simplify the law, Parliament’s apparent drive to make the law ‘more and more inaccessible’ is a constant frustration. ‘If you’re going to do away with lawyers, for God’s sake make it simple,’ he says. ‘Only legislate when you have to legislate.’