John Bolch on the burden of unrepresented litigants

Hardly a week seems to pass without some comment about the effect of increased numbers of unrepresented litigants upon the courts system, particularly since the abolition of legal aid for most family matters last year. Last week it was the turn of Lady Justice Black in the Court of Appeal.

In R (A Child) it was not necessarily the unavailability of legal aid that led to one party being unrepresented. The case involved care proceedings, for which legal aid is still available, although actually it was an appeal by a mother against a care order, and perhaps the Legal Aid Agency was not prepared to fund the appeal. All Lady Justice Black said upon the matter was that she did not know why the mother did not have legal representation.

The case, as Lady Justice Black said, was illustrative of an increasing problem faced by the judges in the Court of Appeal, as more and more litigants appear in front of them in person. Where, as here, the appellant was unrepresented, this required all those involved in the appeal process to take on burdens that they would not normally have to bear.

Lady Justice Black identified three particular problems with appeals where the appellant was not represented:

Firstly, the appellant does not always know who needs to be served with notice of the appeal. In this case, the only respondent named by the mother was the local authority, but the fathers of the children should also have been named. In such cases it falls to the court office to make sure all parties are notified of the appeal.

Secondly, the court requires a bundle of relevant documents to be prepared in order that it can determine the appeal. The bundle should be prepared by the appellant. However, litigants in person often don’t prepare bundles or prepare bundles that are incomplete.

Thirdly, unrepresented appellants often do not prepare proper grounds of appeal, leaving it to the court to identify the grounds and to pinpoint the arguments in support of them.

Lady Justice Black went on to make clear that the court has no extra resources to respond to these “added challenges”. Accordingly, in appeals in care proceedings the local authority “will have to expect to assist by ensuring that the court is provided with appeal bundles”. She went on:

“It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.”

This, as far as I am aware, is a new departure and, if you think of it, a remarkable one. Firstly, the court is passing the burden to local authorities, who I’m sure also do not have any ‘extra resources’. Secondly, it seems strange (to me at least) that one party to court proceedings is effectively preparing the other party’s case.

I know that we are only talking about bundles rather than arguments, and that things are perhaps a little different when the party being passed the burden is a public body rather than a private individual. Nevertheless, it does seem like a line has been crossed. How long before one party is required to prepare other aspects of the other’s case? OK, that may seem unlikely, but the scenario of one party being required to prepare the other’s bundles simply because they have representation seems like a real possibility. Of course, if that were to happen then the represented party would have to bear the burden of the cost of the extra work.

But there is a more important issue than preparing the other party’s case. As Lady Justice Black said, concluding this part of her judgment:

“Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult.”

One has to ask: did those who were responsible for the legal aid cuts have regard to the possible impact of them upon the welfare of children? I doubt it.