Cuts: what kind of courts do you want? (A Reprise)

I posted this in 2010, but in the light of the LCJ’s recent suggesting civil and family courts may need to become inquisitorial., it bears repeating…

Joshua Rozenberg posts an interesting story on legal and court aid cuts today. Mediation is (as ever) set to be trumpeted as a partial cure for the systems ills. This is, I believe, misguided and I also believe that Ministry of Justice Officials already know this. The evidence base on mediation essentially suggests this: mediation is a useful part of the dispute resolution toolkit, but it does not save costs and it is unsuitable for in tractable disputes. I was told recently that the MoJ had some time before the election commissioned an evidence review of mediation which, to the surprise and consternation of policy makers in the Ministry, showed that (and I quote hearsay and from memory here), “The evidence shows it doesn’t work”. Now that’s putting the case against too strongly, but mediation has for at least the last fifteen years been trumpeted as the false dawn on legal cost savings. There are other significant criticisms of mediation, but let’s save those for another time when the bottom line is less dominant.

The second idea is more innovative. “Where courts do have to be used, the government wants a more inquisitorial approach.” This is an idea which, in principle, I support. There is evidence from Ombudsmen schemes that a more inquisitorial approach can help correct power imbalances in a way which legal representation may or does not (see Sharon Gilad’s work at the LSE in particular). There is however a lot of devil in the detail. A structural issue is that in international comparative terms, spending on our courts is very low. This is the reverse side of our legal aid coin: we’ve spent more on legal aids and les son courts than comparator jurisdictions.

This means that courts are not set up to help litigants; and judges are not resourced or trained to do so. An inquisitorial approach demands a profound cultural shift. Judges have to be willing to reach across the bench and yet do so in a way which is, and is perceived to be, fair to both parties. My own research on litigants in person illustrated the difficulties judges faced in this regard and their own disquiet at the way in which unrepresented litigants impacted on the craft of judging. Court staff are inhibited from assisting because of prohibitions of giving legal advice: this prohibition quite literally puts them in an impossible situation. A landlord rings up and indicates they are going to put a tenant our on the street: what can a court officer say without giving legal advice?

There are lots of things that can be done for unrepresented litigants: assistance for litigants online, through workshops, duty schemes and through improved judicial training and support. These require investment, planning, and ‘buy-in’ from the judiciary. There is also the need to look fundamentally at the complexity of both substantive and procedural law: unrepresented litigants have zero chance of engaging effectively in legal proceedings unless the law and court process is simpler. It’s worth noting that one of the findings of my litigants in person research was that where parties were unrepresented some of the
judges felt at a disadvantage because they did not always know the relevant law and did not have the time or facilities to research it. If that problem is posed for judges, what are the chances for unrepresented litigants?