There’s an interesting judgment involving two litigants in person just been published. Sir Alan Ward’s opening paragraphs have garnered a lot of attention:
- This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon that alleged procedural impropriety.
- 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. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. 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.
My second concern is that the case shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation. Both tracks are intended to meet the modern day demands of civil justice. 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. Judge Thornton attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused. What, if anything, can be done about that? You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey v Milton Keynes General NMS Trust  EWCA Civ 576,  1 WLR 3002, for which I am partly responsible, where at  in the judgment of the Court (Laws and Dyson LJJ and myself), Dyson LJ said:
“It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”
Was this observation obiter? Some have argued that it was. Was it wrong for us to have been persuaded by the silky eloquence of the éminence grise for the ECHR, Lord Lester of Herne Hill QC, to place reliance on Deweer v Belgium (1980) 2 EHRR 439? See some extra-judicial observations of Sir Anthony Clarke, The Future of Civil Mediations, (2008) 74 Arbitration 4 which suggests that we were wrong. Does CPR 26.4(2)(b) allow the court of its own initiative at any time, not just at the time of allocation, to direct a stay for mediation to be attempted, with the warning of the costs consequences, which Halsey did spell out and which should be rigorously applied, for unreasonably refusing to agree to ADR? Is a stay really “an unacceptable obstruction” to the parties right of access to the court if they have to wait a while before being allowed across the court’s threshold? Perhaps some bold judge will accede to an invitation to rule on these questions so that the court can have another look at Halsey in the light of the past 10 years of developments in this field.
The implications are fairly clear in so far as it is a critique of government policy. The question I want to focus on is, what happens next? It may be that judicial resistance of this kind and any research into the aftermath*may lead the government to rethink and refund legal aid. I am doubtful of that but it is not beyond the bounds of possibility. More likely, MoJ/HMCS might rethink how courts are staffed and supported, but I am not very optimistic about that, save perhaps some marginal changes as regards self help types of support. Quite a lot of beneficial work could be done here, but I imagine it will occur in a piecemeal and underfunded way, at least in the short term.
Another way of seeing this is that judges are undergoing a process of potentially profound change. They are in the process of both railing against and learning to accept the increasing presence of litigants in person within the courtroom. Change management fetishists will recognise these stages in the process. Step one, perhaps closest to denial, is persuade the government to refund legal aid. Step two is to suggest an alternative that probably won’t work (consider compulsory mediation as an alternative – as Sir Alan’s remarks might imply). Compulsory mediation is not a wholly flawed idea, but I’d suggest it has more demerits than merits (see in particular my colleague Hazel Genn’s research). Step three is adapt. An interesting point noted in Sir Alan’s judgment is that the first instance judge in this case did do so: “He struggled manfully, patiently, politely, carefully and conscientiously.” And then he adds, “Many may not have done so.”
An interesting question raised by these last six words is what would have happened in cases where the judge refuses to engage? A further question is whether the failure to do so is, or will remain, an acceptable approach for judges in the future? Let me not understatethe perils of engagement. Litigants in person present a significant set of challenges to any judge. ‘Reaching over the bench’ to assist is not an activity without perils. However, it may be essential to achieve any semblance of just resolution. It may also tend towards parties (particularly represented parties) questioning the impartiality of the process. It is difficult to see how judges can model their approach on an entirely passive arbiter model. Many, especially district judges I would imagine, manage this balance every day. Judges are having to develop new approaches to hearings. Courts are mixing – of necessity – adversarial and inquisitorial approaches. I do not celebrate the change (though it has some advantages to be held in mind amidst all the anxieties) but there will come a need to accept, adapt and understand the implications of this change for judicial practice; court process; lawyers ethics; and, the proper administration of justice.
*I should declare an interest as a member of a team looking at self represented litigants litigants in person in the family courts looking at what is happening now.