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G. UNREPRESENTED LITIGANTS
G1. The challenges generally posed by unrepresented litigants to civil justice systems
| 139. | In recent times, having to cope with increasing numbers of litigants in person has become a problem shared by many civil justice systems. It is difficult to know much about unrepresented litigants as a group. As The Lord Chancellor's Department points out when evaluating the impact of Lord Woolf's reforms on such litigants :- |
| "They tend to only use the system once and in order to find those who have used the system a very large sample size must be used. Furthermore, they are unlikely to have used the system both before and after the introduction of the civil procedure rules."(Note 105) | ||
| 140. | There may be many different reasons why a litigant is not legally represented. Referring to such litigants in the Australian federal system, the ALRC suggests some of those reasons :- |
| "Some litigants choose to represent themselves. Many cannot afford representation, do not qualify for legal aid or do not know they are eligible for legal aid, and are litigants in matters which do not admit contingency or speculative fee arrangements. They may believe they are capable of running the case without a lawyer, may distrust lawyers, or decide to continue unrepresented despite legal advice that they cannot win." (Note 106) | ||
| 141. | Litigants in person present particular challenges to the system. While some tribunals (such as the Small Claims and Labour Tribunals in Hong Kong) are expressly designed for use by unrepresented litigants, even excluding lawyers from their proceedings, the traditional civil justice system is designed on the footing that parties are familiar with the procedural rules and will take the needed steps to bring the case properly to trial or to some earlier resolution. The system is, in other words, designed on the assumption that parties will have legal representation. |
| 142. | Few unrepresented litigants will know the rules. This causes them, as well as any represented parties and the court, difficulties in progressing and trying the case. To quote the ALRC once more :- |
| "When only one party is unrepresented, a primary difficulty can be maintaining the perception of impartiality. Judges need to ensure that all relevant evidence is heard, relevant questions asked of witnesses, and that the unrepresented party knows and enforces their procedural rights. The represented party may see such judicial intervention as partisan, and judges must ensure they do not apply different rules to unrepresented parties. Where both parties are unrepresented, the parties may be difficult to control, the case disorganised and wrongly construed, there may be party quarrels over irrelevant points, or even harassment or violence." (Note 107) | ||
| 143. | As the LRCWA points out :- |
| "The presence of self-represented litigants in the civil justice system has the potential to increase costs for all court users. These increases may arise from: |
| * | more pre-trial procedures; | ||
| * | poor issue definition and clarification; | ||
| * | greater time and expense spent in responding to unclear or irrelevant evidence; and | ||
| * | excessive time spent in hearings." (Note 108) | ||
| 144. | It is perhaps understandable that such problems sometimes lead judges and legal practitioners to view unrepresented litigants as a nuisance and to treat them with intolerance and hostility. However, such an attitude is plainly unacceptable. Litigants in person probably feel in any event at a great disadvantage and, meeting a hostile reception, are likely to see the system as unjust and themselves as its victims. It must be borne in mind that an unrepresented person is as much entitled to seek enforcement of his rights as someone willing and able to instruct lawyers to do so on his behalf. In an extra-judicial statement, Sir Anthony Mason, when Chief Justice of Australia, voiced this reminder :- |
| "The courts are an integral part of the life of the community and the judges have a responsibility to treat those who resort to the courts, whether they be lawyers, litigants or witnesses, with consideration and, above all, with that respect which the dignity of the individual deserves, unless good reason emerges for taking some other course. As Sir Owen Dixon once remarked in a case in which I appeared, it is the responsibility of the trial judge in each instance to listen sympathetically to the case which the litigant seeks to present with a view to ascertaining and understanding it. Only having done that can the judge, with a due sense of responsibility, reject the litigant's case." (Note 109) | ||
| 145. | Difficult and possibly intractable though the challenges posed by litigants in person might be, it is increasingly recognized in civil justice systems around the world that such litigants are likely to remain a permanent feature of the landscape and that measures must be taken to accommodate them and at least to facilitate their participation in the legal process. |
Notes
| 105 | EF, §8.7. <back> |
| 106 | ALRC No 89, §5.147. <back> |
| 107 | ALRC No 89, §1.152. <back> |
| 108 | WAR - Final Report, p 153, §18.3. <back> |
| 109 | Sir Anthony Mason CJ, The Role of the Courts at the Turn of the Century (1993) 3 JJA 156 at 166. <back> |
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