President of the Supreme Court Lord Neuberger closed the Global Law Summit last month by concluding that “genuine access to justice is crucial” if a society is to “maintain adherence to the rule of law”. A lofty ambition indeed, the more so where genuine access to justice simply does not exist in 98% of those countries attending the Summit who may well pay lip service to these sentiments whilst persistently ignoring them.
Since government cutbacks, especially in legal aid, there are many civil litigants who feel they are being denied “genuine access to justice” because they can’t afford the court fees and legal costs associated with instructing a barrister or solicitor. Some simply fall by the wayside, living with what they perceive is a manifest injustice and an enormous chip on their shoulder, and get on with the rest of their lives. Others decide to chance their arm with the system and represent themselves. Gawd help us!
The litigant in person is the bane of the legal system, and frankly, a giant pain in the derriere. The judge feels incumbent to help him as much as he can, which runs contrary to the principle of ‘equality of arms’ in the legal system. This help ranges across the entire spectrum, from how not to ask a leading question, indeed, what is a leading question? How to cross-examine a witness by putting questions for him to answer rather than making unfounded assertions of fact. And most important of all, the golden rule drummed into every wannabee advocate at law school, from his first lecture on evidence and procedure, when NOT to ask a question and when to shut up and sit down.
Courts are expensive to run and maintain. On average, a court costs in the region of £9000 a day to function, and I suspect Lord Neuberger’s court a good deal more. As somebody once said, and it could have been me, time is money. A few years’ ago, I was involved in a civil hearing with a litigant in person. The time estimate was one court day. The hearing lasted a full four days spread over several months, and guess who picked up the tab for this monstrous overrun? You did. By that, I mean the long-suffering taxpayer. And the irony of it was that if a qualified advocate had been instructed, the taxpayer would have saved himself £27,000 and a severe test of his patience.
A further sad irony in this shambles is that both legal professions, solicitors and barristers, are grossly oversubscribed and weighed down with the unemployed. Somebody calculated recently that there is now a lawyer for every four hundred of the population, so these litigants in person are spoiled for choice. So why not give an unemployed lawyer what was once called a dock brief, he turns up, spends one hour flicking through the papers, and then he’s off and running, with brevity his watchword. We can then all nod reverentially towards Lord Neuberger and his lofty ambitions, the Lord Chancellor will be as pleased as Punch over the saving of court time and money, and with goodwill on all sides, we can claim to have done our bit to maintain the rule of law.