CA adds voice to fears over growth in LiPs and says compulsory mediation may need revisiting

Court of Appeal: trying to save money on legal aid can end up costing more

Justice will be ill served by the “emasculation of legal aid” leading to more litigants in person, while the question of allowing compulsory mediation should be revisited, the Court of Appeal has warned.

Though the outspoken comment came from Sir Alan Ward ahead of his retirement, Lord Justice Hughes also weighed in, saying the case in question was a “good example of the way in which efforts to save money on legal representation can often end up costing everyone, and in particular the public, more rather than less”.

Wright v Michael Wright Supplies & Anor [2013] EWCA Civ 234 – which was heard in December, but the judgment has only just been published – concerned a dispute between two businessmen who, in the words of Sir Alan, “have become resolute litigators and they litigated in person”.

Praising the efforts of the trial judge, Anthony Thornton QC, Sir Alan said: “What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person.”

He cited the difficulties of bringing “order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences”.

He continued: “Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming.

“It may be saving the Legal Services Commission, which no longer offers legal aid for this kind of litigation, but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented.

“With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”

The case also showed it is not possible to shift intransigent parties into mediation. “The raison d’être (or do I simply mean excuse?) of the Ministry of Justice for withdrawing legal aid from swathes of litigation is that mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues. I heartily agree with the aspiration and there are many judgments of mine saying so. But the rationale remains a pious hope when parties are unwilling even to try mediation.”

He suggested that it may now be time to review the landmark 2004 ruling in Halsey – in which he was one of the judges that said parties cannot be forced to mediate. “Perhaps some bold judge will accede to an invitation to rule on [the questions subsequently raised about the ruling] so that the court can have another look at Halsey in the light of the past 10 years of developments in this field,” Sir Alan said.

Mr Justice David Richards, the third member of the court in Wright, endorsed Sir Alan’s comments “on the difficulties posed for and by litigants in person in their conduct of all but the most straightforward cases. Their involvement on one or both sides in complex cases has in the Chancery Division, where I sit, grown from virtually nothing to being a commonplace in only a few years.

“Judges do all they can to help, but these cases impose great burdens on the time and resources of the court and the parties.”

Litigation Futures reported yesterday the concerns of the new chairman of the Association of Her Majesty’s District Judges about the impact of the growth in litigants in person.