Recent analysis by the Law Society of England and Wales (the ‘Law Society’), published in spring, shows a rise in litigants in person (LiPs) in family law cases. According to the analysis, thousands of people in the jurisdiction are being forced to represent themselves in divorce or separation cases because they don’t have access to legal aid. Nick Emmerson, President of the Law Society, says these kinds of cases ‘have almost trebled since the [UK] government brought in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which cut large areas from legal aid overnight’.

The majority of LiPs in England and Wales represent themselves because they’re unable to pay for a lawyer. The narrow eligibility criteria for legal aid in family cases has restricted access to funding and the impact of this has been exacerbated by the cost-of-living crisis. There are also some LiPs who simply prefer to speak for themselves, and dislike being filtered by a lawyer.

Elisabeth Loukas is Chair of the IBA Family Law Committee and Sole Practitioner at the Law Office of Elisabeth H Loukas in Boston, Massachusetts. She says that where she practises, ‘there doesn’t seem to be [sufficient] legal aid services to satisfy the need’, and adds that ‘lawyers are just pricing out a whole section of society’.

Leonardo Melos, Co-Chair of the IBA Access to Justice and Legal Aid Committee and a partner at Bergstein in Montevideo, is seeing an increase in LiPs in consumer law as well as in family law. In low-value cases, for example, the claimant may decide to represent themselves because the value of the case is lower than the cost of paying a lawyer to represent them. He highlights the imbalance that occurs when one party is represented and the other is not. ‘When someone is litigating by himself, he is in a weaker position’, he says.

Sarah Bell, a partner at Stephens Scown in Truro, England, says ‘the court does treat litigants in person carefully’. She adds that ‘it is more difficult for solicitors to deal with a litigant in person […] and that does quite frequently create more costs for the client who is paying to have a solicitor’.  

Jessie Smith, Diversity and Inclusion Officer of the IBA Family Law Committee and a senior associate at Howard Kennedy in London, agrees. ‘We’re having to be extra careful [when dealing with a LiP]’, she says, ‘which does cost more money’. Smith says a lawyer dealing with a LiP has a heightened duty of care, which can mean the unrepresented party almost gets the benefit of legal advice within the case without having to pay for it themselves.

In England and Wales, when there are two LiPs in a case, the court and the judge must do the preparatory work for both parties, whereas when one party is represented the lawyer involved is expected to carry out that work regardless of which party they represent. In some ways, it might be argued that it’s fairer when the court does the work. However, that work is funded by the court and uses its time, adding to the already significant backlogs that make justice less accessible. 

Both lawyers and the courts are taking steps to address the impact of the rising number of LiPs. Bell says the English courts provide guidance on the forms that parties are required to complete. Loukas describes a scheme in her jurisdiction where lawyers donate their time to help a litigant fill out the forms required to go to court but don’t go on to represent them.

There’s also the option to file a notice of appearance form that enables a lawyer to represent a client for just one hearing. Lawyers require specialist training to be able to provide this service without establishing a relationship with the client. ‘It’s a delicate situation’, Loukas says, ‘because we’re used to establishing an attorney-client relationship that can go on for years’. 

This type of service is being offered in England and Wales as well. Smith says that when a client wants advice but can’t afford to instruct in the traditional sense, the firm will offer ‘an unbundled service’ where ‘it’s very clear that we’re not advising them holistically about the case or about the strategy, but we onboard them [and] we know what’s going on in the background’. The client can then instruct the firm for a specific document that needs filling out, which allows them to budget more effectively. There’s also the option for the client to instruct a barrister directly – referred to as direct access. 

While unbundling legal services in this way makes them more affordable, there are implications when a lawyer-client relationship isn’t established. Developing a relationship with a client can be critical to ensuring legal advice is taken on board. ‘They’re not going to take that [advice] from you unless they trust you’, says Smith. 

Sometimes, when little or no legal advice is taken, cases are pursued to court when a lawyer would have advised against doing so. When this happens unnecessarily, it adds to the backlogs the courts are experiencing.

Ultimately, the rise of LiPs ‘goes to the access to justice point for everybody’, says Smith. ‘The litigant in person isn’t getting advice and therefore they’re not representing their case the best way they could […] but also their lack of access to justice is hindering everybody else’s because it makes everything go more slowly’. 
 

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