A report shows that the increase is due to having less access to legal aid
The International Bar Association has highlighted a report showing a significant increase in litigants in person (LiPs) in family law cases attributed to restricted access to legal aid.
According to a report by the Law Society of England and Wales, thousands represent themselves in divorce or separation cases due to a lack of access to legal aid. This rise has been notably linked to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which removed many areas from legal aid coverage.
In a statement, Nick Emmerson, president of the Law Society, said, “Cases have almost trebled since the government brought in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which cut large areas from legal aid overnight."
Most LiPs in England and Wales self-represent because they cannot afford a lawyer. The restrictive eligibility criteria for legal aid in family cases and the cost-of-living crisis have exacerbated this issue. Some LiPs, however, choose to represent themselves because they prefer to speak directly without a lawyer.
Hilka Hollmann, associations and committees liaison officer within the IBA family law committee and a partner at Dawson Cornwell in London, noted that the introduction of gateway evidence required to qualify for legal aid has increased LiPs in private law proceedings. Jessie Smith, diversity and inclusion officer at the IBA Family Law Committee and a senior associate at Howard Kennedy in London, highlighted that dealing with LiPs requires extra caution, which can drive up costs for clients who do pay for legal representation.
Elisabeth Loukas, chair of the IBA family law committee, observed a similar trend in Boston, Massachusetts, where insufficient legal aid services cost a significant portion of society. Leonardo Melos, co-chair of the IBA access to justice and legal aid committee, has seen an increase in LiPs in consumer and family law. He pointed out the imbalance that occurs when one party is represented and the other is not, noting that unrepresented litigants are often at a disadvantage.
Sarah Bell, a partner at Stephens Scown in Truro, England, stated that the court treats LiPs carefully, which often results in higher costs for the represented party. Smith agreed, saying that lawyers have a heightened duty of care when dealing with LiPs, which can mean the unrepresented party benefits from legal advice without paying for it.
In England and Wales, when both parties are LiPs, the court must do the preparatory work for both, which can add to the already significant backlogs in the justice system. Both lawyers and courts are implementing measures to address the impact of rising LiPs. Bell mentioned that English courts provide guidance on the required forms, and Loukas described a scheme where lawyers donate time to help litigants complete court forms.
Some law firms in England and Wales offer "unbundled services," where clients can receive specific document assistance without full representation, making legal services more affordable. However, this can have implications when a traditional lawyer-client relationship is not established, potentially affecting the client's trust in the advice.
Ultimately, the increase in LiPs affects everyone's access to justice. Smith noted that self-represented litigants lack proper advice, which means they cannot present their cases as effectively as possible. Additionally, their limited access to justice slows down the entire process for everyone.
