Judicial working group's report requests procedural change in anticipation of "enormous rise" of LiPs
Senior judges have called for procedural rule change to make the courts more inquisitorial to help them deal with the anticipated influx of litigants in person (LiPs).
A report by a judicial working group, set up by the Master of the Rolls in December, warns of the “inevitable” and “enormous rise” in LiPs as a result of the withdrawal of legal aid from 623,000 of the million people who previously had access to it.
The report, published last week, includes a long list of likely delays and disruptions to the courts caused by lay persons bringing their own cases, for example, LiPs may not understand the concepts of cause of action or evidence.
Family cases, particularly where there are allegations of domestic violence, may be fraught and the court will need to guard against risks of violence to parties involved, the children, or to the judges themselves.
The working group, led by Mr Justice Hickinbottom, make three recommendations on procedural change. These are: reform of CPR Rule 3.1 on case management to allow the judge to make the proceedings more inquisitorial where a LiP is involved; a rule allowing the judge to make specific moderations to other rules; and a new practice direction or rule to address the needs of LiPs without creating a fully inquisitorial form of procedure.
They call on the Ministry of Justice (MoJ) to provide extra materials, such as audio-visual guidance, to help LiPs understand court procedure. They recommend that the Judicial College provide more training on LiPs and develop a LiP toolkit of guidance for judges.
They call for the term, “McKenzie Friend”, to be re-examined urgently, and for the Judicial Office to consider new rules relating to lay assistants and the right to conduct litigation, right to exercise rights of audience and right to reasonable assistance.
Hickinbottom J said: “This report is written with a view to ensuring that the judiciary are optimally prepared to deal with that influx [of LiPs], helping to enable those without legal representation to access the courts and tribunals, and to put their case as effectively as possible.”
