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26/03/2017

Silence in Court – Litigants in Person

Without Legal Aid or access to money to pay for a lawyer a person may have no choice but to represent themselves at Court. For many this will be there first experience of a Courtroom outside of a film or television drama. The sources of information they may be relying on may be incomplete, out of date or even false. They may well be able to present their case thoughtfully and articulately and they may not.

Judicial research examining the experiences of Litigants in Person in 2013 found the following:

  • They are likely to be stressed and worried and may be completely unfamiliar with both law and procedure.
  • They may well be experiencing feelings of fear, ignorance, frustration, bewilderment and disadvantage, especially if appearing against a represented party. The outcome of the case may have a profound effect and long‐term consequences upon their life. They are likely to be unfamiliar with the language and specialist vocabulary of legal proceedings;
  • have little knowledge of the procedures involved and find it difficult to apply the rules even if they do read them;
  • lack objectivity and emotional distance from their case;
  • be unskilled in advocacy and unable to undertake cross‐examination or test the evidence of an opponent;
  • be ill‐informed about the presentation of evidence;
  • be unable to understand the relevance of law and regulations to their own problem, or to know how to challenge a decision that they believe is wrong.
  • Litigants in person may also often believe that because they are aggrieved in some way they automatically have a good case or attempt to pursue an argument based on a false assumption i.e. a contract must be in writing.

What Help is Available?

The Courts and other legal professionals (where they are involved) will try to go out of their way to explain procedures and to set out the important issues for the litigants in person but they cannot give legal advice. In some cases this may be sufficient.

In most cases those without funds to obtain advice are likely to have a number of issues and may be ill-equipped to understand the important issues in a case or easily communicate their position. The Court’s themselves are not immune to the massive cuts made by Government with £249 million being cut from their budget, 400 staff being made redundant and Courts being closed all over the country.

While charities such as the Citizen Advice Bureau or Personal Support Unit will attempt to help those who find themselves unrepresented at Court, these organisations are overworked and themselves reliant on funding which is being drastically cut or reduced.

Why does this matter?

The English and Welsh Court System are adversarial in nature with one side pitted against the other. Where one or both sides are represented, the litigant in person is typically at a huge disadvantage (even when not up against a represented opponent) as they are potentially unable to properly draw the courts attention to favourable points or avoid focusing on irrelevant issues.

If a litigant in person is unable to engage in the judicial process in any meaningful way then it cannot be said that they have had Access to Justice. Without Access to Justice they cannot enforce or defend their rights.

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