Litigants in Person What Can Courts Do June 2014

Faculty of Laws
LITIGANTS IN PERSON:
What can Courts do?
A Special Event
18 June 2014
BACKGROUND PAPERS
UCL FACULTY OF LAWS

UCL Laws has been a leading centre of legal education for almost
200 years. Under the stewardship of current Dean, Professor Dame
Hazel Genn, the Faculty continues to uphold its historical reputation
as a world-class institution for education and research. It consistently
ranks among the top law faculties in the UK for research, teaching and
student satisfaction. The Faculty has world-class scholars that range across the full spectrum of legal
issues. This research often has a profound real world impact, reflected in its national and international
influence on government policy, law and legal practice.
http://www.ucl.ac.uk/laws
THE UCL JUDICIAL INSTITUTE

The UCL Judicial Institute is the first and only centre of excellence
for research and teaching about the judiciary in the UK. The
Institutes purpose is to provide evidence-based understanding and
intellectual leadership about the judiciary as a critical social institution
and the process of judicial decision-making. The Institute carries out
cutting-edge research on the judiciary and provides outstanding educational opportunities for
students, practitioners, judges and those performing quasi-judicial roles. The Judicial Institute is led by
co-directors Professor Dame Hazel Genn and Professor Cheryl Thomas and guided by an Advisory Board
of distinguished jurists and scholars from both the United Kingdom and abroad.
http://www.ucl.ac.uk/laws/judicial-institute
THE UCL CENTRE FOR ACCESS TO JUSTICE

Located within the UCL Faculty of Laws, the Centre for Access to Justice
combines the unique advantages of clinical legal education with the provision
of pro bono legal advice to vulnerable communities, predominately in the
areas of social welfare, employment and education law. UCL is unique in its
incorporation of casework and social justice awareness into the law degree
programmes we offer. Working in partnership with charity organisations and
legal professionals, the Centre provides legal assistance to members of the local community while
giving students an opportunity to gain hands on experience in meeting legal needs. Understanding the
broader implications that a lack of access to justice can have, we take a holistic approach to resolving
the legal problems our clients face.
http://www.ucl.ac.uk/laws/accesstojustice
LITIGANTS IN PERSON: WHAT CAN COURTS DO?

UCL JUDICIAL INSTITUTE
& THE UCL CENTRE FOR ACCESS TO JUSTICE
SPECIAL EVENT
WEDNESDAY 18 JUNE 2014
17:30 19:00pm
DENYS HOLLAND LECTURE THEATRE
UCL FACULTY OF LAWS
This Special Event brings together judges, academics and practitioners to examine what practical
steps can be taken in court to secure effective access to justice for the increasing number of litigantsin-person (LIPs) using the courts.
The courts and their adversarial procedures have, historically, developed and been designed on
the basis that individual litigants are legally represented. Recent changes to legal aid and litigation
funding mean that many people are no longer in a position to secure legal representation. Selfrepresentation is likely to increase over time, and may become the norm in certain categories of
litigation, presenting significant challenges to litigants in person and to the courts. It is incumbent
on the State, if it is to secure both the common law constitutional right of access to the court and
the Article 6 ECHR right to fair trial, to reform the justice system and its procedures to enable LIPs to
litigate effectively.
These Background Papers are aimed at generating discussion at this UCL Laws Special Event around
a number of specific issues:

How to deliver effective, fair court proceedings involving LIPs?
If there is a need for more inquisitorial proceedings, what does that involve and what skills
must the judiciary develop?
What should be the approach of the judiciary to McKenzie Friends, both paid and unpaid?
How best to manage persistent and vexatious litigants?
What measures have been effective in supporting LIPs in other jurisdictions? How should we
assess the measures we have taken in order to improve their efficacy?
How to track the growth of LIPs, their impact on the justice system, and the effectiveness of
innovative measures?
The discussion at this special event will be held under the Chatham House Rule*.
* When a meeting is held under the Chatham House Rule participants are free to use the information received,
but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.
PROGRAMME
Chaired by
Professor Dame Hazel Genn, Dean UCL Laws and Co-Director of UCL Judicial Institute
Panel Participants
Lord Dyson, Master of the Rolls and Head of Civil Justice
Lord Justice Ryder, Court of Appeal, England and Wales
Judge Antoine Garapon, Institut des Hautes Etudes Sur La Justice, Paris
Bonnie Rose Hough, Centre for Courts & Families, Administrative Office of the
Courts of California
Tea will be available in the Cissy Chu Common Room from 16:30.
Denys Holland Lecture Theatre:
17:30

Introduction & Context

Professor Dame Hazel Genn DBE QC
17:40
Responding to the challenge of LIPs
Lord Dyson
17:50

Developments in Family Justice regarding LIPs

Lord Justice Ryder
18:00

Inquisitorial Proceedings in France

Judge Antoine Garapon
18:10

Building the capacity for justice system innnovation

Bonnie Rose Hough
18:20
Questions to the panel and general discussion
19:00

Close, followed by
Wine and canapes reception in the Cissu Chu Common Room
Biographical notes on the Panel
Professor Dame Hazel Genn DBE QC

Professor Dame Hazel Genn is Dean of the UCL Faculty of Laws and co-director of the UCL Judicial
Institute. She is an expert on civil and administrative justice and has conducted numerous empirical
studies of court and tribunal processes, including studies of the impact of representation on the
outcome of tribunal hearings. She has a longstanding interest in access to civil justice and has written
widely in this field. She has been involved for many years in developing and delivering training for the
judiciary at all levels with a particular emphasis on the perspectives of court users. She served on the
Judicial Appointments Commission from 2006-2011.
Lord Dyson, Master of the Rolls and Head of Civil Justice
The Rt. Hon. Lord (John) Dyson was called to the bar in 1968, before being appointed a Queens Counsel
in 1980. From 1986 to 1993 he was a Recorder, and then from 1993 to 2001, he was a Justice of the High
Court. While a High Court judge he was, from 1998 to 2001, the Presiding Judge for the Technology and
Construction Court. In 2001 he was appointed a Lord Justice of Appeal, and from 2003 to 2006 he was
deputy Head of Civil Justice. In 2010 he was appointed a Justice of the Supreme Court of the United
Kingdom, a position he held until his appointment in October 2012 as Master of the Rolls.
As Master of the Rolls, Lord Dyson is the second most senior judge in England and Wales, President
of the Court of Appeals (Civil Division) and the Head of Civil Justice for England and Wales. He is also
Chairman of both the Civil Justice Council and Civil Procedure Rule Committee. In these various roles,
he has overall judicial responsibility for the civil justice system, and as a consequence, for the successful
implementation of the Jackson Costs reforms. He has taken a particular interest in justice systems ability
to secure effective access to justice for litigants-in-person. In October 2012 he was closely involved in
the commissioning of a Judicial Working Party to consider the effect that changes to legal aid provision
would have on litigants-in-person and then to make recommendations for reform. Work flowing from
that Working Partys report, which looked at procedural rule changes and made recommendations
concerning the role played by McKenzie Friends, is still on-going. Lord Dyson, together with other
members of the Judicial Executive Board, has broad oversight of that work.
Sir Ernest Ryder
Sir Ernest Ryder was called to the bar in 1981, before being appointed a Queens Counsel in 1997. From
2000 - 2004 he was a Crown Court Recorder, and from 2001 - 2004, a deputy judge of the High Court.
In 2004 he was appointed a Justice of the High Court, and assigned to its Family Division. While a High
Court judge he was, from 2009 - 2013, the presiding judge for the Northern Circuit. In 2013 he was
appointed as a Lord Justice of Appeal.
From 2011 2013 Sir Ernest was the judge in charge of the modernisation of family justice. He was
responsible for overseeing the practical changes to the system that were required for the establishment
6
of the new Family Court and its procedures and practices. In that regard he has been particularly
involved with the development of active case management and the development, within that, of the
new more inquisitorial approach to family justice (both through the rules and Practice Directions and
through authoritative judicial decisions) that has been necessitated by the reduction in family legal aid
and the subsequent growth in litigants-in-person in family proceedings.

Antoine Garapon, PhD, former juvnile court judge, has been Secretary- General of the Institut des
Hautes Etudes sur la Justice (IHEJ) since 1991 and is also on the editorial committee of the journal Esprit.
His publications include: Le Gardien des promesses, le juge et la dmocratie (Odile Jacob, 1996), La
Rpublique pnalise (with Denis Salas, Hachette, 1996), Bien juger. Essai sur le rituel judiciaire (Odile
Jacob, 1997), Que sais-tu de la justice ? (a watercolour by Nolle Herresnschmidt, for 8th graders), Et ce
sera justice. Punir en dmocratie (Odile Jacob, 2001, with Frdric Gros and Thierry Pech), Albert Camus:
Rflexions sur le terrorisme (a commentary on texts about terrorism written by Albert Camus and
selected by Jacqueline Lvi-Valensi, Nicolas Philippe Publishing co., 2002), Des crimes quon ne peut ni
punir, ni pardonner (Odile Jacob, 2002), Juger en Amrique et en France. Culture juridique franaise et
common law (with Ioannis Papadopoulos) (Odile Jacob, 2003), Les juges dans la mondialisation (with
Julie Allard), Seuil, Peut-on rparer lhistoire? Colonisation, esclavage, Shoah and La raison du moindre
tat. Le nolibralisme et la justice (2010). In 2013, Antoine Garapon was commisionned by the French
Minister of Justice to report on the role of judges and prosecutors (with Sylie Perdriolle and Boris
Bernab) : La Prudence et lAutorit (Odile Jacob, 2014). Antoine Garapon also directs the Bien commun
collection at Michalon Publishing and hosts a weekly radio program, Le bien commun , on Franceculture. He became Chevalier de la Lgion dhonneur in 2013.
Bonnie Rose Hough
Bonnie Rose Hough is the Managing Attorney for the Center for Families, Children & the Courts of the
California Administrative Office of the Courts (AOC). The focus of her work is helping courts meet the
needs of self-represented litigants. Her unit coordinates the California Courts Self-Help Website, which
provides over 4,000 pages of legal and procedural information and referrals in English and Spanish.
She oversees five grant programs providing $40 million in funding for legal services and court-based
self-help programs. Bonnie oversees development of family law forms, rules and procedures, and
document-assembly programs. She has edited an award-winning bench guide for judges handling
cases involving self-represented litigants. Before joining the AOC, she was in private practice in family
law and ran a legal services agency.
Participants List
Mrs Justice Asplin
High Court in England and Wales
Mr Justice Baker
Dr Nigel Balmer
Reader in Law & Social Statistics, UCL Faculty of Laws
Sir Geoffrey Bindman QC
Lady Justice Black
Court of Appeal in England and Wales
Mr Justice Blair
Richard Brant
Researcher & Tutor, Faculty of Law, Lancaster University
Lord Justice Briggs
Sir Stanley Burnton
Chair, Access to Justice Working Group, JUSTICE
Lord Carnwath UK Supreme Court
Lord Clarke UK Supreme Court
Mr Justice Cobb
Godfrey Cole
UCL Judicial Institute Training Fellow
Professor Lizzie Cooke
Law Commissioner for England and Wales
Andrea Coomber Director, JUSTICE
Professor Judge Jeremy Cooper
Upper Tribunal and of the first Tier Tribunal (Mental Health)
Mr Justice Cranston
HH Judge Cryan
Circuit Judge (South East)
Mr Carlos Dabezies JUSTICE
Lord Justice Davis
Vice-President of the Queens Bench Division
Anna Donovan
Lecturer, UCL Faculty of Laws
Andrea Dowsett
Assistant Secretary to the Civil Justice Council,
Judicial Office
Davina Duggan
Policy Manager, Family Justice, Ministry of Justice
Lord Dyson
Master of the Rolls and Head of Civil Justice
Rebecca Endean
Director of Analytical Services, Finance, Assurance &
Commerical Group, Ministry of Justice
Sir Terence Etherton
The Chancellor of the High Court
Peter Farr
Head of the Master of the Rolls Policy Team and
Private Office
Professor Trevor Farrow
Osgoode Hall Law School, Toronto
Dame Elizabeth Filkin DBE
Amanda Finlay CBE
The Low Commission
Suzie Forell
Senior Researcher, Law & Justice Foundation of NSW
Mr Justice Foskett
HH Judge Freeland QC
Central London Civil Justice Centre
Secretary General, Institut des Hautes Etudes Sur La Justice
Professor Dame Hazel Genn DBE
Dean, UCL Faculty of Laws
Yvette Genn Cloisters Chambers
Michael Greenslade
Lead Adjudicator, Parking on Private Land Appeals
Lord Justice Gross
Senior Presiding Judge for England and Wales
Caroline Hamilton
Chief Parking and Traffic Adjudicator, PATAS
Nick Hanning RWPS Law
Mr Justice Hayden
Lord Hodge UK Supreme Court
Bonnie Rose Hough
Managing Attorney for the Centre for Families, Children

and the Courts of the California Administrative Office of
the Courts of California
8
Lord Hughes UK Supreme Court

Lord Justice Jackson
District Judge Tim Jenkins
County Court and Family Court at Brentford
Dr Jacqui Kinghan
Director of Clinical Legal Education, UCL Faculty of Laws
Robin Knowles CBE QC
3-4 South Square
District Judge Margaret Langley
Chair of the London Association of District Judges
Lord Justice Laws
District Judge Chris Lethem
South Eastern Circuit
Sir Brian Leveson
President of the Queens Bench Division
Sir David Lloyd Jones
Chairman, Law Commission
Andrew Lockley JUSTICE
Lady Justice Macur
HH Judge Madge
Inner London Crown Court
Judith March
Director, Personal Support Unit, Royal Courts of Justice
Alexandra Marks Judicial Appointments Commission
Lord Justice McFarlane
HH Judge Mitchell
Central London County Court/Bromley County Court
Professor Richard Moorhead
Director, UCL Centre for Ethics and Law
Sir James Munby
President of the Family Division
Joe Murphy Ministry of Justice
Ruchi Parekh Legal Researcher, JUSTICE
Mrs Justice Parker
HH Judge Phillips
Director of Training, Judicial College
Professor Pascoe Pleasence
UCL Faculty of Laws
Nigel Pleming QC
39 Essex Street
Judge Isobel Plumstead
Norwich Combined Court and Secretary, Council of
Circuit
Judges
Participants
Professor Judith Resnik
Yale Law School
Shiva Riahi
Acting Manager, UCL Centre for Access to Justice
Lord Justice Richards
Deputy Head of Civil Justice
Jenny Rowe
Chief Executive, UK Supreme Court
Lord
Justice
Ryder
Court
of Appeal
in England
Wales
The Rt
Hon the
Lord Neuberger
President
of the UK
Supremeand
Court
Dr
Sorabji
Principal
Legal Adviser
theSupreme
Lord Chief
Justice and
TheJohn
Rt Hon
the Lord Hope
Deputy President
of thetoUK
Court
Master
of the UK
Rolls/UCL
Judicial
The Rt Hon the Lady Hale
Justice
of
Supreme
CourtInstitute
Lord
Justice
Sullivan
Senior
Tribunals
The Rt
Hon the
Lord Mance
Justice President
of the UK of
Supreme
Court
Lord
Sumption UK
Supreme
Court
The Rt Hon the Lord Kerr
Justice of the UK Supreme Court
Alastair
Tallon Court
The Rt Hon
the Lord Clarke
JusticeChairman,
of the UK Greenwich
Supreme Court
Judge
Taylor
Regional
London)
The Rt Carol
Hon the
Lord Wilson
Justice ofJudge
the UK(East
Supreme
Court
Professor
Cheryl
Thomas
Co-Director,
Judicial Institute
The Rt Hon
the Lord
Sumption
Justice of theUCL
UK Supreme
Court
Lord
Thomas
Lord
Chief
Justice
of England
and Wales
The Rt
Hon the Lord Carnwath
Justice
of the
UK Supreme
Court
Dr
Tatiana
Tkacukova
Centre
for
Forensic
Linguistics,
Aston University
The Rt Hon the Lord Collins
retired Justice, UK Supreme Court
HH Judge Walden-Smith
Specialist Senior Circuit Judge (Chancery), Central London
Civil Justice Centre
Greg Watkins Family Business Improvement, HMCTS
Teresa
Williams
Director,
Social
& Policy, Nuffield Foundation
The Hon
Mr Justice Adrian Saunders
Caribbean
CourtResearch
of Justice
Penny
Williams
Magistrates
Association
Family
Courts Committee
Sir Michael Birt
Bailiff of Jersey
Lord
Wilson UK
Supreme
Court
Richard
Collas Bailiff
of Guernsey
Professor
Zuckerman
Professor
of Civil
Procedure,
University
of of
Oxford
DeemsterAdrian
Doyle
First Deemster
and
Clerk of the
Rolls, Isle
Man
The Rt Hon Lady Justice Hallett DBE
The Rt Hon Lord Justice Gross
Court of Appeal, Vice President Queens Bench Division

Court of Appeal, Deputy Senior Presiding Judge
9
10
BACKGROUND PAPERS
Litigants in Person: What can courts do?
11
BACKGROUND PAPERS
Table of Contents
Introduction
14
Part 1: Developing a more inquisitorial approach 15

Introduction 16
Extracts from:
Air Canada and Others Appellants v Secretary of State for Trade and
Another [1983] 2 A.C. 394
Al Rawi & Ors v The Security Services & Ors [2012] 1 AC 531
Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041
The Family Justice Modernisation Programme, 4th Update
The Judicial Working Group on Litigants in Person: Report
Thomas CJ, Reshaping Justice
Mole v Hunter [2014] EWHC 658 (QB)
Re R (a child) [2014] EWCA Civ 597
C (a child) [2013] EWCA Civ 1412
Re W (a child) [2013] EWCA Civ 1227
Re D [2014] EWCA Civ 315
Re CJ v Cardiff City Council [2011] EWCA Civ 1590
Part 2: McKenzie Friends
30
Introduction 31
Extracts from:
Judicial Working Group on Litigants in Person Report
Report: Fee-Charging McKenzie Friends
Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010]
1 WLR 1881
Court of Session Rules, rules 12A and 12B
Part 3: Managing persistent and vexatious litigants
44
Introduction 45
Extracts from:
Clarke MR, Vexatious Litigants & Access to Justice: Past, Present, Future
Genn, Do-it-yourself law: Access to justice and the challenge of
self-representation C.J.Q. 2013, 32(4)
Lester, The Vexatious Litigant
Part 4: LIPs: Challenges and Practical Solutions
54
Introduction 55
Extracts from:
Williams, Litigants in person: A literature review
Australian Productivity Commission, Access to Justice Arrangements
Macfarlane, The National Self--Represented Litigants Project: Identifying and
Meeting the Needs of Self--Represented Litigants (Final Report)
Dyson MR, Advances in Open Justice in England and Wales
12
Sorabji, Tinkler v Elliott: Promptly setting aside a judgement given in a

partys absence
Handling Cases Involving Self-Represented Litigants: A Benchguide For
Judicial Officers (Judicial Council of California Administrative Office of
the Courts)
A Guide to Bringing and Defending a Small Claim
The Interim Applications Court of the Queens Bench Division of the
High Court - A Guide for Litigants in Person
Interim Applications in the Chancery Division: A Guide for Litigants in Person
CLIPS - Chancery Bar Litigant in Person Support Scheme
Part 5: Tracking the growth and impact of LIPs and the efficacy of reforms 94
Introduction 95
Extracts from:
Genn, Do-it-yourself law: Access to justice and the challenge of
self-representation C.J.Q. 2013, 32(4)
13
BACKGROUND PAPERS
Litigants in Person: What Can Courts Do?
Introduction
The focus of this special event is how the English and Welsh civil justice system may have to change in
order to better enable litigants-in-person (LIPs) to secure effective access to justice. It is hoped that the
various Background Papers will highlight some initiatives that have already been taken and stimulate a
discussion of what further practical reforms might be implemented in the future.
Organisation of the Papers
Part 1, Developing a more inquisitorial approach, focuses on the issue of whether, and if so to what
extent, the justice system may have to modify its traditional commitment to adversarial process. It looks
at how a more inquisitorial approach is being developed in family proceedings.
In Part 2, McKenzie Friends, the materials set out reform recommendations made by both a Judicial
Working Party and the Legal Services Consumer Panel. It sets out the present approach to McKenzie
Friends by the English and Welsh courts and contrasts them with the approach recently taken in
Scotland.
In Part 3, Managing persistent and vexatious litigants, the papers consider present measures used
to protect the court from abuse of process. They outline the state of empirical evidence available
regarding persistent and vexatious litigants and current understanding of psychiatric issues that may
underpin their behaviour. The papers also consider what practical steps might be taken in respect of
such litigants
Part 4, LIPs: Challenges and Practical Solutions focuses on practical steps that might help LIPs
navigate the justice system. It looks at specific recommendations based on empirical studies of LIPs
experiences, as well as of other individuals (court staff, lawyers, judges).
Part 5, Tracking the growth and impact of LIPs and the efficacy of reforms, outlines the steps that
have been taken and which ought to be taken to measure LIP numbers, their effect on the justice
system and how well reforms aimed at improving their ability to secure effective access to justice
achieved that end.
14
PART 1
Developing a more inquisitorial approach
15
Part 1: Developing a more inquisitorial approach

Introduction
The materials in Part 1 consider the extent to which the justice system should modify its traditional
commitment to an adversarial process in order to increase effective access to justice for LIPs. In
particular, it considers whether, and the extent to which, the justice system may adopt a more
inquisitorial or investigatorial approach to the pre-trial and trial process.
The first group of materials sets out the courts traditional approach to inquisitorial process. The Air
Canada and Al-Rawi decisions note the adversarial nature of English procedure and how an inquisitorial
approach to trial procedure is impermissible. Al-Medenni exemplifies the traditional approach through
setting out the extent to which the court can go behind the way in which the parties have framed the
litigation.
The second group of materials deals with recent developments that call for a reconsideration of the
traditional approach. Developments in family justice have, for instance, explicitly endorsed, and then
developed a more inquisitorial approach to litigation and have done so in order to ensure effective
access to justice for LIPs. They are an express response to the growth in LIPs. Additionally, reformers
have considered whether similar reforms ought to be implemented in so far as civil justice is concerned.
A Judicial Working Party has, in this regard, called for consideration of reforms to the Civil Procedure
Rules such as the introduction of a dedicated rule or rules relating to LIPs, or the introduction of a
more inquisitorial form of process where LIPs are concerned. Thomas CJs lecture further raises these
considerations, but also calls for consideration of the practical consequences of such reforms i.e.,
their impact on court resources or on other litigants. What may look like a panacea may bring with it
problems of its own.
The third group of materials contains recent case law developments. Mole v Hunter suggests that
there is no need for civil procedure rule reform, as there is sufficient flexibility in the extant rules to
secure effective access to justice for LIPs. It, and Re R, equally echoes Thomas CJs concerns regarding
the impact that a more inquisitorial process is, and may have, on court resources. Re C and a number
of other such cases set out the nature of the more inquisitorial approach that is being developed in
family proceedings. They canvass the statutory basis for such an approach, and outline its development
from public law to private law proceedings, while setting out a number of ways in which it operates. It
remains an open question as to whether and how civil process may develop in similar ways.
16
Developing a more inquisitorial approach

(1) The traditional approach
Extract from Air Canada and Others Appellants v Secretary of State for Trade and
Another [1983] 2 A.C. 394
Lord Wilberforce, 438 439
In a contest purely between one litigant and another, such as the present, the task of the court is to do,
and be seen to be doing, justice between the parties - a duty reflected by the word fairly in the rule.
There is no higher or additional duty to ascertain some independent truth. It often happens, from the
imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would
tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole
truth of the matter: yet if the decision has been in accordance with the available evidence and with the
law, justice will have been fairly done. It is in aid of justice in this sense that discovery may be ordered,
and it is so ordered upon the application of one of the parties who must make out his case for it. If he is
not able to do so, that is an end of the matter. There is no independent power in the court to say that,
nevertheless, it would like to inspect the documents, with a view to possible production, for its own
assistance.
Extract from Al Rawi & Ors v The Security Service & Ors [2012] 1 AC 531
Lord Dyson
[21] But even in an area which is not the subject of statute or statutory procedural rules, there are limits
to the courts inherent jurisdiction to regulate how civil and criminal proceedings should be conducted.
In my view, there is considerable force in what Professor Martin Dockray said in The Inherent
Jurisdiction to Regulate Civil Proceedings (1997) 113 LQR 120, 131:
.a matter which is procedural from the position of an applicant may be
constitutional in the eyes of the respondent. The fact that procedural law can be
described as subordinate or adjectival because it aims to give effect to substantive
rules should not conceal the truth that procedures can and do interfere with
important human rights, while the means by which a decision is reached may be
just as important as the decision which is made in the end. Where procedure is as
important as substance, procedural change requires the same degree of political
accountability and economic and social foresight as reform of an equivalent
rule of substantive law. Major innovations in procedural law should therefore be
recognised as an institutional responsibility, not a matter on which individual
judges should respond to the pleas of particular litigants. Procedural revolutions
should appear first in statutes or in the Rules of Court, not in the law reports.
[22] For example, it is surely not in doubt that a court cannot conduct a trial inquisitorially rather than
by means of an adversarial process (at any rate, not without the consent of the parties) or hold a hearing
from which one of the parties is excluded. These (admittedly extreme) examples show that the courts
power to regulate its own procedures is subject to certain limitations. The basic rule is that (subject to
certain established and limited exceptions) the court cannot exercise its power to regulate its own
17
procedures in such a way as will deny parties their fundamental common law right to participate in the
proceedings in accordance with the common law principles of natural justice and open justice. To put
the same point in a different way, the court must exercise the power to regulate its procedure in a way
which respects these two important principles which are integral to the common law right to a fair trial.
Extract from Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041

Dyson LJ
[21] In my view the judge was not entitled to find for the claimant on the basis of the third man theory
(one which the judge had suggested to the parties but which had not been pleaded by the claimant). It
is fundamental to our adversarial system of justice that the parties should clearly identify the issues
that arise in the litigation, so that each has the opportunity of responding to the points made by the
other. The function of the judge is to adjudicate on those issues alone. The parties may have their
own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even
encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect
that decision. One consequence of this may be that the judge is compelled to reject a claim on the
basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it
had been advanced on a different basis. Such an outcome may be unattractive, but any other approach
leads to uncertainty and potentially real unfairness.
[22] The starting point must always be the pleadings. In Loveridge and Loveridge v Healey [2004]
EWCA Civ 173, Lord Phillips MR said this at paragraph 23:
In McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 Lord Woolf MR
observed:
Pleadings are still required to mark out the
parameters of the case that is being advanced by
each party. In particular they are still critical to
identify the issues and the extent of the dispute
between the parties.
It is on the basis of the pleadings that the parties decide what evidence they will
need to place before the court and what preparations are necessary before the
trial. Where one party advances a case that is inconsistent with his pleadings, it
often happens that the other party takes no point on this. Where the departure
from the pleadings causes no prejudice, or where for some other reason it is
obvious that the court, if asked, will give permission to amend the pleading,
the other party may be sensible to take no pleading point. Where, however,
departure from a pleading will cause prejudice, it is in the interests of justice
that the other party should be entitled to insist that this is not permitted unless
the pleading is appropriately amended. That then introduces, in its proper
context, the issue of whether or not the party in question should be permitted
to advance a case which has not hitherto been pleaded.
[23] In the present case the claimants pleaded case was that Mr Braich and no one else placed the
reel on the machine. If the claimant wished to advance the third man theory as an alternative to her
primary case, then she had to seek permission to amend her pleadings. It may be that she had sound
tactical reasons for not taking this course. To advance such an alternative case was inconsistent with
18
the claimants evidence, and might in any event have been interpreted as a sign of weakness. There
was no hint of the third man theory in the witness statements, the way in which the case was opened
or in the evidence of the claimants witnesses. I accept that there was a rather faint-hearted espousal of
the theory by Miss Harmer in her closing submissions, but in my judgment it was by then far too late for
the claimant to take the point.
(2) A new inquisitorial approach

Extract from Ryder J, The Family Justice Modernisation Programme, 4th Update
(Judicial Office)
A statement of principle about inquisitorial case management is being considered.
There is a project to identify the courts expectations of unrepresented parties and vice versa so that
cases involving unrepresented parties are not unfairly prejudiced in terms of their process. This will
involve the provision of significant new materials to assist both represented parties who appear against
those who are unrepresented and unrepresented parties to understand the expectations of the court
and to abide by its procedures and practices.
As part of the modernisation programme we intend to pursue a separate project which looks at private
law reforms. Quite apart from a careful reconsideration of the courts case management processes
having regard to the number of litigants who may fall out of scope of public funding and the benefits
of mediated resolutions, there are primary legislative changes proposed by Government which include
the concept of shared parenting and amendments to section 8 of the 1989 Act.
...
To return to the 26-week pathway in public law proceedings . . . the legal environment that remains is
a welfare i.e. inquisitorial environment not an adversarial fact finding environment. The problem to be
solved is essentially placement which may of course include the success of rehabilitation, the feasibility
of kinship options and consequential contact. Even as respects planned and purposeful delay cases
decisions can be made in principal within 26 weeks. Courts will be encouraged to identify whether in
principle a parent will be in a position within the timetable for the child to resume care. If that decision
is made within 26 weeks it follows that planned and purposeful delay might include the use of court
based supervision under validated and research based options such as the FDAC court whose success
has been clearly established.
Within this welfare environment it is likely that the court will start from the proposition that only such
expert evidence as is necessary to decide a relevant issue upon which the ultimate decision is based
should be ordered. Changes to the rules and practice directions relating to experts will make provision
for this approach.
In standard track cases it is likely that if any expert is needed that expert will be a single expert for a
party or one agreed expert. This is not a quasi-inquisitorial approach. It is a full inquisitorial approach
with the court in the driving seat in relation to the issues to be tried and the evidence which is
necessary for that hearing to be conducted fairly. It is anticipated that within the review of rules and
practice directions, consideration will be given to a system for urgent case management appeals.
19
Extract from The Judicial Working Group on Litigants in Person: Report (Judicial
Office) (July 2013), p.31 (http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/lip_2013.pdf )
The Judicial Office should undertake, urgently, further work to assess the merits of three proposals:

Provision of a dedicated rule that makes specific modifications to other rules where one or more
of the parties to proceedings is a litigant in person.

Introduction of a specific power into CPR Rule 3.1 that would allow the court to direct that,
where at least one party is a litigant in person, the proceedings should be conducted by way of a more
inquisitorial form of process.

Introduction of a specific general Practice Direction or new Civil Procedure Rule that would,
without creating a fully inquisitorial form of procedure, address the needs of litigants in person to obtain
access to justice while enabling courts to manage cases consistently with the overriding objective.
Extract from Lord Thomas CJ, Reshaping Justice, (Justice Lecture) (3 March 2014)
http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/lcj-speech-reshaping-justice.pdf
[29] We have to keep an open mind even on radical options. For example, to some a change to a more
inquisitorial procedure seems like the obvious or the only solution to the present situation we find
ourselves in with the increase in litigants-in-person and the need to both secure a fair trial for all whilst
doing so within limited and reducing resources that have to be distributed equitably amongst all those
who need to resort to the courts. It might be said by them that to attach to it the label of inquisitorial
was doing it a disservice, as it was really little more than the active interventionism characteristic of
much pre-trial procedure, case and trial management. But I think it is right to refer to it as inquisitorial,
because the essence of the change would be a much greater degree of inquiry by the judge into the
evidence being brought forward.
[31] . . . Questions such as how is the justice system to operate an inquisitorial process effectively need
to be considered. What effect would that have on the ability to give other cases their fair share of the
courts time and resources? What consequences would it bring to, for instance, the efficient use of
judicial time? Would an increased workload mean we would need more judges, or need to introduce
a new cadre of junior judges? What effect would it have on the structure of our courts, and courts
administration? What would be its cost?
[32] These questions can all be multiplied, not least when we they have to be considered in a wider
context. Continuing reform of the legal profession as a practical consequence of the 2007 Legal
Services Act, amongst other things. The nature of and consequences of modern IT provision to the
courts, on court processes, not least the management of cases, and on legal practices. Simplification of
procedure for lower value cases and its consequences. All these, and many more issues, are interrelated.
We cannot look at potential options for reform in isolation.
20
(3) Inquisitoriality the developing case law

Extract from Mole v Hunter [2014] EWHC 658 (QB)
Tugendhat J
THE PROCEDURE ADOPTED

107. It is not uncommon for there to be defamation actions in which both sides are litigants in
person, as in this case. And in such cases the litigants normally have great difficulty in
complying with the requirements of the CPR.
108.
Ms Hunter and Ms Mole each presented their cases to me with care and restraint. They have
been more successful than many litigants in person in what they have each been attempting to
achieve. In many cases the procedural history is much worse than it is in the present case.
109.
In the present case it appears that each party has received some advice from someone with
legal knowledge, and that too is not uncommon. But that is no substitute for representation by
a lawyer competent to give advice in the field of defamation.
110.
One of the reasons why claimants bring actions in person is that it is easy for disgruntled
individuals to post defamatory allegations on the internet. These publications can be very
damaging if the person making the allegation succeeds in attracting any viewers. In the past
it was more difficult for disgruntled individuals to be able to inflict serious damage to the
reputations of those with whom they were in dispute.
111.
Because both sides were litigants in person, I conducted the hearing by asking first Ms Hunter
and then Ms Mole about each of the matters complained of in the counter claim. I then
gave each of them an opportunity of asking questions of the other. Ms Mole chose to ask
no questions. I then went through the chronology of events as I understood them to be,
inviting each of them to correct or complement the understanding I had formed on my own
reading of the papers and to make their submissions. Before doing this I invited each party for
their consent to the procedure I proposed to adopt, although in my view CPR r.3.1 (2) (m) is
sufficiently wide to make such consent unnecessary. I also indicated that I also proposed to hear
both applications before me before making a ruling on either of them.
112.
This procedure may be an example of what Lord Thomas CJ referred to in a lecture to Justice
the week after this hearing (on 3 March 2014) when he cited The Judicial Working Group on
Litigants in Person: Report at paras 2.10, 5.11 and page 33. This Report recommended that there
be consideration of:
Introduction of a specific power into CPR Rule 3.1 that would allow
the court to direct that, where at least one party is a litigant in person,
the proceedings should be conducted by way of a more inquisitorial
form of process in civil proceedings where both or at least one party
is represented
113.
If so, then such form of process is already used by judges and Masters in this field of the law,
pursuant to the general powers under CPR r.3.1 (2)(m). But the introduction of a specific power
into CPR r.3.1 would not suffice by itself to resolve the problems.
21
114.
Litigation between two litigants in person places great demands upon the court. Some of the
reasons are referred to in the Report at para 3.14ff. As is commonly the case (Report para 3.17),
the papers in this case were presented to me in four separate bundles in no chronological order.
In addition I had to search the court file for documents which the parties had not themselves
produced or included in the bundles prepared for the hearing, but which were obviously
relevant. This is work which is normally done by lawyers representing the parties, and it is usually
done by junior lawyers.
115.
But if the work is not done by or for the parties, it still has to be done by someone in order for
the case is to be tried justly. Masters and judges have no legally qualified assistants, and so in
practice they must do the work themselves, if they can.
116.
However, it is a waste of resources for this elementary work to be done by judges and Masters.
One of the reasons why in England and Wales there are relatively few judges compared with
the numbers in civil law jurisdictions is that the courts are administered on the assumption that
necessary preparatory work will be done by or on behalf of the litigants and at their expense. If
it is not done at the expense of the litigants, then it must be done, if at all, at the expense of the
state.
117.
There will be significant budgetary and resource implications if the courts are to provide, free of
charge to the litigant, and through the costly time of Masters or Judges, services to those who
cannot, or who choose not to, instruct solicitors and barristers that they would receive at a small
fraction of the cost from lawyers of the junior level appropriate for such work. The Report refers
to the issue of resources (paras 2.4, 2.12 and 4.11), but records at para 3.49 that this is a matter for
Her Majestys Courts and Tribunal Service and the Ministry of Justice.
118.
To understand and decide this case I have not only had to devote to this case a disproportionate
amount of the resources of the court. I have also had to deploy experience gained from practice
at the Bar in this field of the law. Defamation is a specialist area of the law with which very few
judges have any familiarity. The Masters acquire some experience in the course of their work,
and, when they are able to do so, they give to litigants such prompting as they are able to give
consistently with their duty to maintain judicial impartiality. But in practice any judge who
was not a specialist in the field could not realistically be expected to attempt to do justice in a
dispute such as the present one. Such a judge would require significantly more time to do the
preparatory work, and would be likely to require more knowledge of the law and practice in this
field than could be acquired in the time available.
119.
I record that this case is one three consecutive cases which have been conducted before me by
litigants in person. One of these, Abbas v Shah, was also a libel action with a lamentable history
of delay, and the other, Mensah v Darroch, was in substance a claim for breach of confidence.
Only in the last of these has the defendant submitted that the claims should be struck out as
totally without merit.
Extract from Re R (a child) [2014] EWCA Civ 597

Black LJ
[6] This case is illustrative of an increasing problem faced by this court. More and more litigants appear
in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in
the appeal process to take on burdens that they would not normally have to bear. The court office finds
itself having to attempt to make sure that the parties to the litigation are notified of the appeal because
22
litigants in person do not always know who should be served; the only respondent named by M here
was LA. The bundles that the court requires in order to determine the appeal are often not provided by
the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently
at the request of the judges allocated to hear the case when they embark upon their preparation for the
hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to
be identified by the judge hearing the permission application and the arguments in support of them
may have to be pinpointed by the court hearing the appeal.
[7] The court has no extra resources to respond to these added challenges. It needs to be understood
that the file from the lower court is not available to the appeal court which is dependent on the
papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care
proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided
for the children who are the subject of the proceedings), then local authorities will have to expect to
assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles
are normally required, unless the appeal is ordered to be heard by two judges in which case only two
copies need be supplied. The bundles will often have to include the documentation that was available
to the court below, although there can be appeals in which the issue is so discrete that a more limited
selection of papers will suffice. 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 appellants proposed bundle and, if it is deficient or apparently nonexistent, to contact the court to see whether it is necessary to supply alternative or supplementary
bundles.
Extract from C (a child) [2013] EWCA Civ 1412

Ryder LJ
39.
On 21 December 2012 the proceedings were adjourned to a contested hearing because father
did not accept the Cafcass recommendation. The first available date was on 6 March 2013 before a
Recorder. There were no attempts in the intervening period to update any of the information contained
in the Cafcass report, in particular about father and the risk that it is said he presented. Although both
parents were given permission to file further statements the question of how father could or should
respond to the serious allegations in the Cafcass report was not addressed, that is the key issues were
not identified to be answered and a direction for a fact finding hearing was not made.
40.
Appointments of the type I have so far been describing take time, particularly where one or
more of the parties are litigants in person as a consequence of the provisions of LASPO 2012. If the
dispute is not immediately susceptible of conciliation or out of court mediation it will require a lawyers
analysis. This is after all a court of law. In the absence of lawyers, the judge has to do that and to do
that without assistance and sometimes with quite vocal hindrance. That requires more time than in a
circumstance where the lawyers can be required to apply the rules and practice directions, produce the
witness statements, summaries, analyses and schedules, obtain instructions and protect their lay clients
interests. Where a court is faced with litigants in person the judge has to do all that while maintaining
both the reality and perception of fairness and due process. I do not criticise any of the judges involved
in this case. Each was handed a case about which he or she knew nothing and given time only to
deal with the most pressing issue or two that had arisen. That was fire fighting, it may even have been
quality fire fighting but it was not case management.
41.
On the morning of 6 March 2013, that is immediately before the contested hearing began, the
family court advisor filed and served a 22 page document entitled Chronology of Significant Events.
23
The court had not given a direction to permit such a step and so far as can be ascertained there was
no advance notice of the same. The document was a detailed schedule of hearsay evidence that
might have been appropriate if it had been directed by a court as a lawyers forensic summary of the
allegations and materials that had already been filed. It was not a summary of the evidence filed unless
it could be argued to be a record of the source materials for the section 7 report that was filed three
months earlier. It should not have been admitted without argument and it was clearly highly prejudicial
and of questionable probative value. It became the primary evidential document in the case, replacing
the mother and almost everyone else who might have had something to say on a question of fact. The
document was made available to father on the morning of the contested hearing that gives rise to this
appeal.
42.
In that context, father made an application to adjourn the contested hearing. His primary
purpose was to adduce up to date evidence about his mental health. He asserted that his treatment
was susceptible of successful completion and that he would be able to demonstrate that with materials
from the professionals involved. In addition and unknown to the family court advisor, the probation
officer she quoted in good faith had been replaced sometime in 2012 and as this court now knows, the
risk described by fathers senior probation officer who had detailed knowledge of fathers supervision
was fundamentally different. In simple terms, his analysis was that father presented a low risk.
43.
It is not surprising that the judge who was new to the case was unimpressed by an application
to adjourn given the lengthy delay there had been in getting the first contested hearing listed. Had she
known that a fact finding hearing had never occurred she might have been able to find a constructive
way to use the hearing to good effect and still afford father the opportunity to update the evidence
about risk and to fairly deal with the family court advisors materials.
44.
The hearing then commenced. The mother did not give evidence to substantiate her
allegations and was accordingly not questioned by anyone. As a matter of pure technical form, her
document of 12 August 2013 was never admitted into evidence. There was therefore no evidence from
mother for father to meet and he was accordingly afforded no opportunity to test the direct evidence
of domestic violence. The only evidence came from the family court advisor. As I have remarked,
she treated the allegations as fact. She gave evidence based upon her report and her substantial
chronology, that is hearsay evidence about the facts in issue as well as reported opinion from other
professionals and her own opinion. I do not say that this was entirely inappropriate. It is appropriate
for a family court advisor to identify the facts or alleged facts she has relied upon and the opinions of
others that she accepts or adopts in coming to her own opinions and recommendations. She is after all
a qualified social worker whose skill and expertise are those of an expert in that field. That said, had a
fact finding hearing been held, third hand hearsay evidence of facts in issue might not have been given
great weight in the absence of the evidence of mother or a concession from father.
45.
I do not ignore the possibility that an alleged victim of domestic violence from an allegedly
over controlling or dangerous perpetrator may need considerable support to give her evidence. At
the very least it should be established just what evidence she is able to give and an appropriate
opportunity should be given to the alleged perpetrator to challenge that evidence. That could have
been done by case management or, as I shall describe, by a more inquisitorial process that protected
the interests of all involved. What was not acceptable in my judgment was the presentation of facts
that were in dispute as if they were decided. The judge who heard the case (and who would have had
no knowledge of it before she walked into court on the morning) was entitled to know that contrary to
the impression given this was a fact finding hearing where the facts were in dispute. The hearing that
was conducted was accordingly not a fact finding hearing, it was a welfare hearing which heard about
the severe risk that it was said father presented to mother based upon facts that had never been tested
let alone determined by a family court.
24
46.
To add to the air of unreality the family court advisor gave her oral evidence from behind a
screen. Special measures in a family court are not fixed by primary or secondary legislation as they
are in the Crown Court. They can however be used in a similar way and for similar reasons. They are a
means of facilitating the evidence of someone who is vulnerable so that the quality of their evidence
is not damaged by their vulnerability. Children who give evidence often do so with the assistance of
special measures such as a video link. It is not inconceivable that a professional witness might need
the same facility but it is much less likely: Re W (Care Proceedings: Witness Anonymity) [2002] EWCA
Civ 1626, [2003] 1 FLR 329 at [13]. The mischief in this case is compounded by the fact that the family
court advisor gave her evidence as an officer of the state behind a screen rendering her effectively
anonymous and unseen and she was afforded that facility without due process. If it was said that such
measures were necessary that should have been on application to the court on notice to the father and
to the mother and full reasons should have been given. There was no such application and if there was
neither this court nor the father were aware of it and there is no record of any determination. There is
no order. It should not have happened in the way that it did.
47.
I have intimated that a more inquisitorial process may help those judges who need to deal with
very difficult cases involving litigants in person where emotions can run very high. At the hearing at
which the section 7 report was first available there was an opportunity for detailed case management.
In less fraught cases this is often a real opportunity for dispute resolution in the same way that an Issues
Resolution Hearing provides that facility in public law children proceedings. That was the latest of
the various hearings at which the key issues of fact and opinion could have been identified and if not
resolved, described on the face of an order so that the parties and the court would have been clear
about the purpose of the contested hearing. Directions could have included providing short answers
to the key issues identified and up to date materials which would have avoided fathers last minute
adjournment application and his successful application to this court to adduce additional evidence.
48.
At the hearing and given that it would have been clear whether the key issues included the
need to make findings of fact, the judge can control the process to ensure that it is fair. Having been
sworn, each party can be asked to set out their proposals and to confirm their version of the disputed
key facts. They can then be asked by the judge what questions they would like to ask of the other party.
Where lawyers are not instructed the judge can then assimilate the issues identified into his or her own
questions and ask each party the questions that the judge thinks are relevant to the key issues in the
case. It may be appropriate to give the parties the opportunity to give a short reply. In that way the
issues can be proportionately and fairly considered.
Extract from Re W (a child) [2013] EWCA Civ 1227 (public law proceedings)
Ryder LJ
36.
Although it is conventional to speak of facts having to be proved on the balance of probabilities
by the party who makes the allegation, proceedings under the 1989 Act are quasi-inquisitorial (quasiinquisitorial in the classic sense that the court does not issue the process of its own motion). The judge
has to decide whether sufficient facts exist to satisfy the threshold (the jurisdictional facts) whether
or not the local authority or any other party agree. Furthermore, the basis upon which the threshold
is satisfied is a matter for the judge, not the parties. It is a question of jurisdiction, not just the facts in
issue between the parties. To that end, if the judge directs that an issue be settled for determination,
then absent an appeal, the issue will be tried whatever any party may think about that. As Pitchford LJ
said in R (CJ) v Cardiff City Council [2012] 2 All ER:
[21] The nature of the courts inquiry under the 1989 Act
was inquisitorial. To speak in terms of a burden of establishing
precedent or jurisdictional fact was inappropriate.
25
[22] I am persuaded that the nature of the inquiry in which the

court is engaged is itself a strong reason for departure from the
common law rule which applies a burden to one or other of the
parties. I gratefully adopt my Lords analysis that the High Court is
exercising its supervisory jurisdiction and in so doing is applying
the rule of law. Neither party is required to prove the precedent
fact. The court, in its inquisitorial role, must ask whether the
precedent fact existed on a balance of probability
...
71.
It can be stated without question that once a full care or supervision order is made the family
courts functions are at an end unless and until a jurisdiction granted by Parliament or otherwise
recognised in law is invoked by an application that is issued. That applies equally to the High
Court whether in the Family Division of the High Court in the exercise of its inherent prerogative or
Convention jurisdictions or in the Queens Bench Division of the High Court in the exercise of its public
law jurisdiction in the Administrative Court.
72.
Within proceedings, however, the local authority in common with all other parties, are bound
by the case management decisions of the court. It is the court which decides what the key issues are,
that is the matters of disputed fact and opinion that it is necessary to determine in order to make the
ultimate decision asked of the court. It is the court which decides the timetable for the child having
regard to the welfare of that child and then the implications of that welfare timetable upon each of
the interim procedural questions that it is asked to decide. It is the court which decides the timetable
for proceedings. The court decides whether there are sufficient facts which if found would satisfy the
threshold and provide the jurisdiction to make orders and it is the court which decides what evidence
is necessary to answer the key issues and the ultimate decision, whether by directing the local authority
or the other parties to provide the same or, if it is necessary, authorising the instruction of an expert on
the question.
73.
The making of findings of fact and value judgments is not confined to those matters which a
local authority seeks to pursue once proceedings have begun. That much is clear, the court can decline
to permit the local authority to withdraw proceedings and can impose upon them an order that they
did not or no longer seek.
74.
The court is not dependent on a willing party. Indeed an unwilling party who flouts the courts
orders may find itself in contempt, even if it is an agency of the State such as a local authority. It is
necessary to point out for the discussion which follows that the courts orders are to be complied with.
They are not preferences, requests or mere indications: they are orders and non-compliance with orders
should be expected to and will usually have a consequence.
75.
As McFarlane LJ helpfully describes in Re G (A Child) [2013] EWCA Civ 965 at [44], if the
threshold criteria in section 31 are capable of being satisfied, the court must evaluate which set
of arrangements for the childs future care are to be endorsed by the courts order by affording
paramount consideration to the childs welfare (the welfare evaluation). This is not the place to set
out the detail of the important guidance set out in Re G as to the use of the welfare checklist in section
1(3) in conducting the welfare evaluation and the importance of that evaluation being undertaken in
the context of the distinct welfare provisions in the Adoption and Children Act 2002 (and in particular
section 1(4)(c)) where the issues before the court include the option of adoption (see paragraphs [44]
to [51] and [54] to [56]). For the purposes of this judgment, the important principle to recall from the
judgment of McFarlane LJ in Re G is his critique of the linear approach and his description of the right
26
approach to welfare evaluation in the courts consideration of whether to make an order and if so,
which order:
[50] The linear approach, in my view, is not apt where the judicial task is to
undertake a global, holistic evaluation of each of the options available for the
childs future upbringing before deciding which of those options best meets
the duty to afford paramount consideration to the childs welfare.
76.
The purpose of setting out these basic but important propositions is to provide a very practical
example as well as the legal basis for the use of the courts power to direct the evidence that it needs to
determine the issues it has identified and answer the questions that are before the court. The welfare
evaluation and the question what, if any, orders are to be made engages Article 8 of the Convention
and the proportionality of that intervention must be justified. One cannot have a clearer description
of the imperative than that contained in the Supreme Courts judgments in In the matter of B (A Child)
[2013] UKSC 33. A court cannot apply the yardstick of proportionality in its consideration of what is
necessary without having evidence about the options to which it can apply a welfare evaluation. As
McFarlane LJ said in Re G at [54]:
What is required is a balancing exercise in which each option is evaluated to
the degree of detail necessary to analyse and weigh its own internal positives
and negatives and each option is then compared, side by side, against the
competing option or options..
77.
The court has the power to direct evidence for the very reason that it must decide the issues as
they become apparent from time to time. It is not for the local authority (or any other party) to decide
whether it is going to restrict or limit the evidence that it presents. The local authority is in complete
charge of the decision to make an application but from that moment on, it becomes subject to the
procedural obligations imposed by the rules and practice directions of the court and the orders of the
allocated judge. Procedural fairness for parents, for example in relation to disclosure, notice of decisions
made and the reasons for the same, and the obligation to put both sides of the case in statements
of evidence including evidence favourable to another party that may be inconsistent with or has the
effect of undermining the local authoritys case, are all aspects of the objective inquiry mandated by
the Act. Likewise, the powers and duties of the childrens guardian have to be facilitated and respected
if the child is to have effective access to justice. The courts directions relating to evidence have to be
complied with.
Extract from Re D [2014] EWCA Civ 315 (private law proceedings extending the
approach in public law)
Ryder LJ
26 It is superficial to say that in this case Ds father has not inflicted harm directly on his child and that
therein lies a distinction with Re P which ought to have led to a different conclusion. Ds father inflicted
devastating emotional harm on the whole family including D which he continues to deny. It is difficult
to see how in that circumstance and in the absence of any other positive factors, the father can be said
to be capable of exercising with responsibility his parental rights, duties, powers, responsibilities and
authority.
27 It is likewise wrong to say that the mother has failed to satisfy the burden of proof of facts relating
to fathers alleged sexual recidivism. That is a submission that is becoming ever more prevalent in this
court with the advent of parties who are not represented at first instance and who can be excused for
27
not understanding the significance of either the burden or standard of proof. So the submission goes,
if a party who has the benefit of a finding from the court has not been put to the obligation of proving
it, what the court has done is to subtly reverse the burden of proof. I make it clear this is a distinct
submission from one which calls into question whether someone has not had the benefit of procedural
protections to which they are entitled.
28 Provided that procedural protections are identified and used by the court, the process of fact finding
in family proceedings is quasi-inquisitorial. The welfare of a child may sometimes require a judge to
make decisions about facts and/or value judgments that are not asked for by either party. A judge
cannot shrink from doing so. That is his function. He must identify such questions and where necessary
decide them. Although identified in relation to a different supervisory jurisdiction, the quasi-inquisitorial
process to which I have referred was considered and approved in its use by the family courts in public
law children proceedings and must as a matter of good practice be available to the same inquiry in
private law children proceedings: In the Matter of W (A Child) [2013] EWCA Civ 1227 at [36]:
Although it is conventional to speak of facts having to be proved on the
balance of probabilities by the party who makes the allegation, proceedings
under the 1989 Act are quasi-inquisitorial ( quasi -inquisitorial in the classic
sense that the court does not issue the process of its own motion). The
judge has to decide whether sufficient facts exist to satisfy the threshold (the
jurisdictional facts) whether or not the local authority or any other party agree.
Furthermore, the basis upon which the threshold is satisfied is a matter for the
judge, not the parties. To that end, if the judge directs that an issue be settled
for determination, then absent an appeal, the issue will be tried whatever any
party may think about that. As Pitchford LJ said in R (CJ) v Cardiff City Council
[2012] 2 All ER :
[21] The nature of the courts enquiry under the 1989 Act was
inquisitorial. To speak in terms of a burden of establishing precedent or
jurisdictional fact was inappropriate.
[22] I am persuaded that the nature of the inquiry in which the court
is engaged is itself a strong reason for departure from the common law
rule which applies a burden to one or other of the parties The court
in its inquisitorial role, must ask whether the precedent fact existed on a
balance of probability.
Extract from Re CJ v Cardiff City Council [2011] EWCA Civ 1590

Pitchford LJ
[21] As originally conceived, Mr Hutchings argument on behalf of Cardiff was that there was nothing in
the Childrens Act 1989 which might establish strong reasons for departing from the usual rule that he
who asserts must prove. During the course of argument, Laws LJ sought Mr Browns recognition of the
public interest in ensuring the performance of a public function strictly within but up to the limit of that
bodys jurisdiction. Both Mr Brown and Mr Hutchings appeared to accept my Lords analysis that the
High Courts supervision of the exercise of jurisdiction by an inferior court, or tribunal, or public body
was not a matter which could be resolved according to the private interests of the parties. The nature of
the courts inquiry under the Children Act was inquisitorial. To speak in terms of a burden of establishing
a precedent or jurisdictional fact was inappropriate. Mr Brown, however, appeared to argue not just that
the application of a burden of proof was inappropriate but that in a case of doubt, that doubt should
be resolved in favour of the claimant. He suggested that the context, namely a duty to safeguard
and promote the welfare of children, required a sympathetic approach. It was just as important that
28
jurisdiction was exercised in an appropriate case as it was for jurisdiction not to be exceeded. This is
an argument which seemed to contradict the position taken by Mr Brown at the outset when posing
what he submitted was the correct question (see paragraph 3 above). Mr Hutchings responded that the
effect of the appellants argument would be that the local authority owed duties to any person claiming
to be a child unless and until the public authority established that the claimant was not a child. I do not
consider that the appellant can have it both ways. It seems to me that once the court is invited to make
a decision upon jurisdictional fact it can do no more than apply the balance of probability to the issue
without resorting to the concept of discharge of a burden of proof. In my view, a distinction needs to be
made between a legal burden of proof, on the one hand, and the sympathetic assessment of evidence
on the other. I accept that in evaluating the evidence it may well be inappropriate to expect from the
claimant conclusive evidence of age in circumstances in which he has arrived unattended and without
original identity documents. The nature of the evaluation of evidence will depend upon the particular
facts of the case.
[22] In the course of argument an issue arose whether a finding by one court as to the establishment of
a precedent fact, such as the age of the claimant, was binding upon a court subsequently considering
the exercise of a power or duty dependent upon the same precedent fact. There have been two
relevant decisions in the High Court by HHJ Anthony Thornton QC, sitting as a deputy judge of the High
Court, in AS v London Borough of Croydon [2011] EWHC 2091 (Admin) and Hickinbottom J in R (PM)
v Hertfordshire County Council [2010] EWHC 2056 (Admin). We have not received full argument upon
the issue and the parties agree that it is unnecessary for present purposes for the issue to be resolved.
It is, however, necessary to consider the real possibility that a range of powers and duties exercisable
dependent upon the age status of an individual may be raised in the same proceedings. It would be, in
my view, highly undesirable for contradictory findings to be made as to the existence of the precedent
fact. I am persuaded that the nature of the inquiry in which the court is engaged is itself a strong
reason for departure from the common law rule which applies a burden to one or other of the parties.
I gratefully adopt my Lords analysis that the High Court is exercising its supervisory jurisdiction and in
so doing is applying the rule of law. Neither party is required to prove the precedent fact. The court, in
its inquisitorial role, must ask whether the precedent fact existed on a balance of probability. I make it
plain that I am not proposing that the burden of proof should not be applied in any case in which an
individual is claiming a benefit under a qualifying statutory provision. Whether a burden of proof should
be applied at all and, if so, where it should rest, will depend upon the terms of the statute conferring the
power to act (see the judgments of Baroness Hale and Lord Hope in A and M at paragraph 2 above). In
the Court of Appeal of Northern Ireland, the then Chief Justice, Lord Carswell, held, in Kerr v Department
for Social Development [2002] NICA 32, using ordinary principles of construction of the qualifying
statute, that the claimant bore the burden of establishing his entitlement to a payment in respect of his
brothers funeral expenses, but the Department bore the burden of establishing any of the regulatory
exceptions to that entitlement. I would confine my conclusion as to the absence of a burden of proof to
the particular decision under the Children Act which faced Ouseley J on this occasion.
29
PART 2
McKenzie Friends
30
Part 2: McKenzie Friends

Introduction
The materials in Part 2 consider the role McKenzie Friends can and should play in assisting LIPs. The
first group of materials examines recent recommendations for reform issued in Reports by a Judicial
Working Party and by the Legal Services Consumer Panel. Both Reform Reports recommend that the
courts adopt a more liberal and consistent approach to McKenzie Friends than has previously been
the case; the latter, specifically, endorsing the view that fee-paid McKenzie Friends should be accepted
as a legitimate feature of the civil justice system in effect suggesting that in the absence of legal aid
to provide professional legal representation, fee-paid unqualified individuals should be permitted to
represent citizens in court. It also sets out recommendations for McKenzie Friend reform made by the
New Zealand Law Commission, which are consistent with the approach taken by the Judicial Working
Party.
The second group of materials presents the current practice in England and Wales and in Scotland.
This is contained in Practice Guidance, which summarises the statutory authorities and case law
authorities governing McKenzie Friends and the grant of rights of audience and the right to conduct
litigation by non-lawyers. It sets out the restrictive approach to the grant of such rights under the courts
inherent jurisdiction; an approach which was assumed by Parliament when it preserved that jurisdiction
via the Legal Services Act 2007.
The English and Welsh approach is to be contrasted with the approach taken in Scotland, which does
not recognise a common law for LIPs to receive reasonable assistance in court from McKenzie Friends. It
introduced carefully prescribed discretionary rules of court, which enable Scottish courts to permit the
equivalent of McKenzie Friends to offer reasonable assistance to LIPs and to exercise rights of audience.
The Scottish rules, unlike those in England and Wales, also prohibit McKenzie Friends from acting for
LIPs on a fee-paid basis.
31
McKenzie Friends
(1) Reform Recommendations
Extract from Judicial Working Group on Litigants in Person Report (Judicial Office)
(July 2013), pages 7-9 http://www.judiciary.gov.uk/publications/judicial-working-group-lip-report/
Our report and recommendations
2.8 We begin our report by setting out some of the key issues that litigants in person present for the
courts and tribunals, as a basis for recommending measures to help address those issues. Some of the
issues cut across jurisdictional boundaries; for example, the fact that litigants in person may struggle
to understand and comply with procedural requirements. Others are more prevalent in particular
jurisdictions; for example, the difficulties posed by the highly emotive nature of many cases in the family
courts. This part of our report contains recommendations that:

The Ministry of Justice (MoJ) / HMCTS should devote the necessary work and resources to:
Producing, with judicial involvement, appropriate materials, including,
especially, audiovisual materials, to inform litigants in person what is required of
them and what they can expect when they go to court.
Undertaking, urgently, a thorough review of its web-based information, to
ensure that litigants in person can easily access the information they need to
understand and decide on the various courses of action open to them, and to
prepare for, and present, their case in a court or tribunal.
2.9 The second substantive part of our report looks at training and guidance. Although litigants in
person are already a regular feature in daily working life for some judges, for others they are not yet
but soon will be. Equipping the judiciary to deal with this challenge through training and guidance is
essential. This part of our report contains recommendations that:

The Judicial College should consider, urgently, the feasibility of developing a training course (or
courses) on litigants in person.

The design of all future training on practice, procedure, and judge-craft should have regard to

the fact that a much higher proportion of court and tribunal users will be litigants in person.

The Judicial College should begin, urgently, work to develop a litigants in person toolkit for

judges, utilising existing draft guidance and the relevant chapter of the Equal Treatment Bench
Book.

The Judicial Office and MoJ/HMCTS should hold, urgently, discussions to establish the most
appropriate way to develop a central online resource to which staff and judiciary could easily
refer in order to identify nationally available sources of advice and assistance for litigants in
person; further work to be informed by the outcome of those discussions.
Designated civil and family judges, and, where appropriate, chamber presidents, as the most
appropriate local judicial figures, should be given joint responsibility for ensuring that the judges
in their respective areas are kept fully informed of locally available sources of advice and
assistance for litigants in person.
32
2.10 Recognising that one of the fundamental challenges for judges, particularly in the civil courts,
is how to give legitimate assistance to litigants in person while remaining fair to represented
parties, the next part of our report considers the procedural rules. This part of our report contains
recommendations that:

The Judicial Office should undertake, urgently, further work to assess the merits of three
proposals:
Provision of a dedicated rule that makes specific modifications to other rules where
one or more of the parties to proceedings is a litigant in person.
Introduction of a specific power into CPR Rule 3.1 that would allow the court to
direct that, where at least one party is a litigant in person, the proceedings should be
conducted by way of a more inquisitorial form of process.
Introduction of a specific general Practice Direction or new Civil Procedure Rule that
would, without creating a fully inquisitorial form of procedure, address the needs of
litigants in person to obtain access to justice while enabling courts to manage cases
consistently with the overriding objective.
2.11 In light of the increased significance of the right of litigants in person to call on lay persons
for support after 1 April 2013, the next part of our report briefly considers the role of the McKenzie
Friend and others who litigants in person may ask to assist them. This part of our report contains
recommendations that:

The Judicial Office should consider, urgently, rationalising the historic differences

between practice in the court system and practice in tribunals, as part of a wider review of lay
assistants.

As part of its review, the Judicial Office should consider, urgently, the merits of introducing into
the CPR and FPR, as has recently been introduced in Scotland, rules governing: i) the exercise of
the right to reasonable assistance; ii) the right to conduct litigation; and iii) the right to exercise
rights of audience.
The Head of Civil Justice and Heads of Division should consider, urgently, the terminology that
should be used, including whether the term McKenzie Friend continues to be useful.
Extract from Report: Fee-Charging McKenzie Friends (Legal Services Consumer

Panel) (April 2014), page 17
http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2014%2004%2017%20MKF_Final.pdf
Recommendations
1.
Fee-charging McKenzie Friends should be recognised as a legitimate feature of the evolving
legal services market.
2.
The training course on litigants in person which the Judicial College has been asked to consider
should include content on McKenzie Friends.
3.
Guidance notes issued by professional bodies on litigants in person should include content on
McKenzie Friends.
33
4.
The Practice Guidance (issued by the senior judiciary) should be reviewed and amended to
portray McKenzie Friends in a more positive way.
5.
Education and advice directed towards litigants in person should set out the benefits of using a
McKenzie Friend as one form of support available to them.
6.
A white label consumer guide on McKenzie Friends should be produced, with the assistance of
Law for Life, for use by the advice sector.
7.
More details of judgments, which highlight where the rights of McKenzie Friends who have
behaved improperly have been restricted by the use of Civil Restraint Orders, should be
routinely published on Gov.uk.
8.
The Legal Services Board should review case law on the definition of the conduct of litigation
and publish a document which seeks to clarify its meaning. Depending on the findings of this
research, the Board should consider recommending to the Law Commission that the law in this
area be reviewed.
9.
The Legal Services Board should consider the findings of this report as part of its ongoing work
on simplifying legal services regulation.
10.
Automatic rights of audience should not be granted to McKenzie Friends.
11.
The Practice Guidance should be updated to take account of recent case law. In an ideal world,
the Panel would like judges to have a wide discretion to grant a right of audience when this
would be in the interests of justice.
12.
There should be consistent use of CVs, notices or other simple tools that can help assess the
credentials of McKenzie Friends when considering applications for a right of audience to be
granted.
13.
External regulation of McKenzie Friends should not be introduced.
14.
Fee-charging McKenzie Friends should form a recognised trade association.
15.
The Civil Justice Councils draft code of practice should be updated to include measures
targeted at the unfair commercial practices described in this report.
Extract from New Zealand Law Commission Report, Review of the Judicature Act
1908, pages 147-150
http://www.lawcom.govt.nz/sites/default/files/publications/2012/02/nzlc-ip29-review_of_the_judicature_act_1908_towards_a_
consolidated_courts_act.pdf
Commissions view
Entitlement
As a starting point, the Commission considers that the existing position, namely that self-represented
litigants should be able to have a support person with them in court unless that person will obstruct
the efficient administration of justice, should be retained. The question becomes, then, whether this
over-arching principle should be statutorily recognised.
34
The Commission considers that there is merit in such a provision being included in new courts
legislation. A consolidated Courts Act, such as is proposed, should be a fundamental resource for
self-represented litigants. They should be able to look at the legislation to see that they are generally
entitled to a support person to assist them. It is ironic that, at present, this right is rooted in the
common law, which is perhaps the last place that a self-represented litigant can be expected to find it.
Any empowering provision would also need to limit the general right, to take into account situations
where, for example, the support person is being disruptive or is attempting to subvert the proceedings
for other purposes, or is refusing to accept any necessary confidentiality requirements. Given the
wide-ranging circumstances in which a court may need to deny a person the assistance of a McKenzie
friend, the Commission sees merit in the United Kingdom test whereby the court may decline a selfrepresented litigants request for a support person where it is satisfied that the interests of justice and
fairness do not require the litigant to receive such assistance.
Beyond this general principle, the Commission considers that, as in the United Kingdom, it would be
useful for there to be some guidance as to the factors that should and should not be taken into account
in determining whether to refuse such assistance. It is convenient to deal with this in the next section
relating to the role of the McKenzie friend, as it is not proposed that such guidance be included in
legislation.
Role
The question of whether or not the role of (as distinct from the entitlement to) a McKenzie friend
should be formally provided for is problematic. It was felt by many submitters that there does need to
be some guidance as to the usual role of McKenzie friends and limitations on what they can do, but
equally submitters did not want the Commission to be too prescriptive. There seemed to be a general
consensus among submitters that the core role of the McKenzie friend is to sit with the self-represented
litigant, take notes and quietly offer suggestions and advice. The Commission agrees, and considers that
this should form part of the empowering provision, again on the basis that this information should be
easily accessible to the self-represented litigant.
However, the Commission would not want to go beyond this in the empowering provision. For
instance, while submitters were also agreed that McKenzie friends should not typically be able to
address the judge directly, an element of flexibility is required. For example, there may be rare situations,
such as where the litigant has a speech impediment, where it is necessary for the court to grant the
McKenzie friend speaking rights.
Legislative recognition
The Commission considers that the best approach would be for the empowering provision to include
the following elements: the general entitlement to a support person; the test for when the court can
refuse to permit this; and the core roles of the support person (what the support person can always do).
The Commission also considers that guidelines or rules should be developed as to how the courts will
approach the refusal test in (b), and when they will allow a support person to go beyond the core roles
in (c).
In terms of these, we would support the New Zealand Bar Associations submission that the United
Kingdom Practice Guidance: McKenzie Friends (Civil and Family Courts) could, with modification, be
adopted in New Zealand. For instance, these guidelines include the factors that should and should
not be taken into account in determining whether to refuse such assistance, matters relating to rights
of audience and rights to conduct litigation, and remuneration. Another example is the New Zealand
Family Courts standard form application by the unrepresented party to have a lay assistant, which
includes an undertaking that must be signed by the assistant accepting the limits of their role in court,
and agreeing to maintain the confidentiality of the proceedings.
35
A lawyer as a McKenzie friend?

One submitter supported the idea of lawyers acting as McKenzie friends, although no reasons for
this were provided. On the other hand, the Law Society and the Bar Association did not, although the
former would allow it in exceptional cases. The Commission concurs with the view expressed by the
Law Society that, as lawyers are subject to ethical obligations to their clients and have duties to the
court, combining the two could blur the roles and lead to confusion.
The Law Society suggested that, if practising lawyers wish to support a person who cannot afford legal
representation, the better approach would be for the lawyer to represent the party by acting pro bono
as a lawyer, rather than as a McKenzie friend. The Commission agrees.
Recommendations
R76 New courts legislation should provide for the following with respect to support persons for selfrepresented litigants:
(i) A self-represented litigants general entitlement to a support person;
(ii) The courts ability to refuse to permit a support person where it is satisfied that, in the
particular case, the interests of justice and fairness do not require the litigant to receive such
assistance;
(iii) The core roles of a support person, namely to sit with the self-represented litigant, take
notes and quietly offer suggestions and advice.
R77 Guidelines or rules should be developed as to how the courts will approach the refusal test in R76
(ii), and when they will allow a support person to go beyond the core roles in R76 (iii).
R78 A barrister and/or solicitor of the High Court of New Zealand should not be permitted to be a
support person to a self-represented litigant.
Footnote 221 from the Report:
We note that, while we use the term McKenzie friend in this chapter, we do so only for consistency with
Issues Paper 29 and consider that this term should be replaced with support person in new courts
legislation. It inhibits access to justice to continue to refer to such lawyers terms and a self-represented
litigant who, on turning up at court was asked whether their support person is a McKenzie friend,
would quite rightly be confused.
(2) Present Practice in England and Wales and Scotland

England and Wales: Practice Guidance (McKenzie Friends: Civil and Family Courts)
[2010] 1 WLR 1881
1)
This Guidance applies to civil and family proceedings in the Court of Appeal (Civil Division), the
High Court of Justice, the County Courts and the Family Proceedings Court in the Magistrates
Courts.1 It is issued as guidance (not as a Practice Direction) by the Master of the Rolls, as Head
of Civil Justice, and the President of the Family Division, as Head of Family Justice. It is intended
References to the judge or court should be read where proceedings are taking place under the Family Proceedings Courts
(Matrimonial Proceedings etc) Rules 1991, as a reference to a justices clerk or assistant justices clerk who is specifically authorised
by a justices clerk to exercise the functions of the court at the relevant hearing. Where they are taking place under the Family
Proceedings Courts (Childrens Act 1989) Rules 1991 they should be read consistently with the provisions of those Rules, specifically rule 16A(5A). R v Leicester City Justices, ex parte Barrow [1991] 260, Chauhan v Chauhan [1997] FCR 206, R v Bow County
Court, ex parte Pelling [1999] 1 WLR 1807, Attorney-General v Purvis [2003] EWHC 3190 (Admin), Clarkson v Gilbert [2000] CP Rep
58, United Building and Plumbing Contractors v Kajla [2002] EWCA Civ 628, Re O (Children) (Hearing in Private: Assistance) [2005]
3 WLR 1191, Westland Helicopters Ltd v Sheikh Salah Al-Hejailan (No 2) [2004] 2 Lloyds Rep 535. Agassi v Robinson (Inspector of
Taxes) (No 2) [2006] 1 WLR 2126, Re N (A Child) (McKenzie Friend: Rights of Audience) Practice Note [2008] 1 WLR 2743.
36
to remind courts and litigants of the principles set out in the authorities and supersedes the
guidance contained in Practice Note (Family Courts: McKenzie Friends) (No 2) [2008] 1 WLR 2757,
which is now withdrawn. It is issued in light of the increase in litigants-in-person (litigants) in all
levels of the civil and family courts.
The Right to Reasonable Assistance
2)
Litigants have the right to have reasonable assistance from a layperson, sometimes called
a McKenzie Friend (MF). Litigants assisted by MFs remain litigants-in-person. MFs have no
independent right to provide assistance. They have no right to act as advocates or to carry out
the conduct of litigation.
What McKenzie Friends may do
3)
MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case papers; iii) quietly
give advice on any aspect of the conduct of the case.
What McKenzie Friends may not do
4)
MFs may not: i) act as the litigants agent in relation to the proceedings; ii) manage litigants
cases outside court, for example by signing court documents; or iii) address the court, make oral
submissions or examine witnesses.
Exercising the Right to Reasonable Assistance
5)
While litigants ordinarily have a right to receive reasonable assistance from MFs the court
retains the power to refuse to permit such assistance. The court may do so where it is satisfied
that, in that case, the interests of justice and fairness do not require the litigant to receive such
assistance.
6)
A litigant who wishes to exercise this right should inform the judge as soon as possible
indicating who the MF will be. The proposed MF should produce a short curriculum vitae or
other statement setting out relevant experience, confirming that he or she has no interest in the
case and understands the MFs role and the duty of confidentiality.
7)
If the court considers that there might be grounds for circumscribing the right to receive such
assistance, or a party objects to the presence of, or assistance given by a MF, it is not for the
litigant to justify the exercise of the right. It is for the court or the objecting party to provide
sufficient reasons why the litigant should not receive such assistance.
8)
When considering whether to circumscribe the right to assistance or refuse a MF permission to

attend the right to a fair trial is engaged. The matter should be considered carefully. The litigant
should be given a reasonable opportunity to argue the point. The proposed MF should not be
excluded from that hearing and should normally be allowed to help the litigant.
9)
Where proceedings are in closed court, i.e. the hearing is in chambers, is in private, or the
proceedings relate to a child, the litigant is required to justify the MFs presence in court. The
presumption in favour of permitting a MF to attend such hearings, and thereby enable litigants
to exercise the right to assistance, is a strong one.
10)
The court may refuse to allow a litigant to exercise the right to receive assistance at the start of
a hearing. The court can also circumscribe the right during the course of a hearing. It may be
refused at the start of a hearing or later circumscribed where the court forms the view that a MF
may give, has given, or is giving, assistance which impedes the efficient administration of justice.
However, the court should also consider whether a firm and unequivocal warning to the litigant
and/or MF might suffice in the first instance.
37
11)
A decision by the court not to curtail assistance from a MF should be regarded as final, save on
the ground of subsequent misconduct by the MF or on the ground that the MFs continuing
presence will impede the efficient administration of justice. In such event the court should give
a short judgment setting out the reasons why it has curtailed the right to assistance. Litigants
may appeal such decisions. MFs have no standing to do so.
12)
The following factors should not be taken to justify the court refusing to permit a litigant
receiving such assistance:
(i) The case or application is simple or straightforward, or is, for instance, a directions or case
management hearing;
(ii) The litigant appears capable of conducting the case without assistance;
(iii) The litigant is unrepresented through choice;
(iv) The other party is not represented;
(v) The proposed MF belongs to an organisation that promotes a particular cause;
(vi) The proceedings are confidential and the court papers contain sensitive information relating to
a familys affairs
13)
A litigant may be denied the assistance of a MF because its provision might undermine or
has undermined the efficient administration of justice. Examples of circumstances where this
might arise are: i) the assistance is being provided for an improper purpose; ii) the assistance
is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil
restraint order; iv) the MF is using the litigant as a puppet; v) the MF is directly or indirectly
conducting the litigation; vi) the court is not satisfied that the MF fully understands the duty of
confidentiality.
14)
Where a litigant is receiving assistance from a MF in care proceedings, the court should consider
the MFs attendance at any advocates meetings directed by the court, and, with regard to cases
commenced after 1.4.08, consider directions in accordance with paragraph 13.2 of the Practice
Direction Guide to Case Management in Public Law Proceedings.
15)
Litigants are permitted to communicate any information, including filed evidence, relating
to the proceedings to MFs for the purpose of obtaining advice or assistance in relation to the
proceedings.
16)
Legal representatives should ensure that documents are served on litigants in good time to
enable them to seek assistance regarding their content from MFs in advance of any hearing or
advocates meeting.
17)
The High Court can, under its inherent jurisdiction, impose a civil restraint order on MFs who
repeatedly act in ways that undermine the efficient administration of justice.
Rights of audience and rights to conduct litigation

18)
MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to
exercise rights of audience or to conduct litigation unless properly qualified and authorised
to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or
unauthorised individual (i.e., a lay individual including a MF), the court grants such rights on a
case-by-case basis2.
Legal Services Act 2007 s12 19 and Schedule 3.
38
19)
Courts should be slow to grant any application from a litigant for a right of audience or a right
to conduct litigation to any lay person, including a MF. This is because a person exercising
such rights must ordinarily be properly trained, be under professional discipline (including an
obligation to insure against liability for negligence) and be subject to an overriding duty to the
court. These requirements are necessary for the protection of all parties to litigation and are
essential to the proper administration of justice.
20)
Any application for a right of audience or a right to conduct litigation to be granted to any lay
person should therefore be considered very carefully. The court should only be prepared to
grant such rights where there is good reason to do so taking into account all the circumstances
of the case, which are likely to vary greatly. Such grants should not be extended to lay persons
automatically or without due consideration. They should not be granted for mere convenience.
21)
Examples of the type of special circumstances which have been held to justify the grant of a
right of audience to a lay person, including a MF, are: i) that person is a close relative of the
litigant; ii) health problems preclude the litigant from addressing the court, or conducting
litigation, and the litigant cannot afford to pay for a qualified legal representative; iii) the
litigant is relatively inarticulate and prompting by that person may unnecessarily prolong the
proceedings.
22)
It is for the litigant to persuade the court that the circumstances of the case are such that it
is in the interests of justice for the court to grant a lay person a right of audience or a right to
conduct litigation.
23)
The grant of a right of audience or a right to conduct litigation to lay persons who hold
themselves out as professional advocates or professional MFs or who seek to exercise such
rights on a regular basis, whether for reward or not, will however only be granted in exceptional
circumstances. To do otherwise would tend to subvert the will of Parliament.
24)
If a litigant wants a lay person to be granted a right of audience, an application must be made
at the start of the hearing. If a right to conduct litigation is sought such an application must be
made at the earliest possible time and must be made, in any event, before the lay person does
anything which amounts to the conduct of litigation. It is for litigants to persuade the court, on a
case-by-case basis, that the grant of such rights is justified.
25)
Rights of audience and the right to conduct litigation are separate rights. The grant of one right
to a lay person does not mean that a grant of the other right has been made. If both rights are
sought their grant must be applied for individually and justified separately.
26)
Having granted either a right of audience or a right to conduct litigation, the court has the
power to remove either right. The grant of such rights in one set of proceedings cannot be relied
on as a precedent supporting their grant in future proceedings.
Remuneration
27) Litigants can enter into lawful agreements to pay fees to MFs for the provision of reasonable
assistance in court or out of court by, for instance, carrying out clerical or mechanical activities,
such as photocopying documents, preparing bundles, delivering documents to opposing
parties or the court, or the provision of legal advice in connection with court proceedings. Such
fees cannot be lawfully recovered from the opposing party.
39
28)
Fees said to be incurred by MFs for carrying out the conduct of litigation, where the court has
not granted such a right, cannot lawfully be recovered from either the litigant for whom they
carry out such work or the opposing party.
29)
Fees said to be incurred by MFs for carrying out the conduct of litigation after the court has
granted such a right are in principle recoverable from the litigant for whom the work is carried
out. Such fees cannot be lawfully recovered from the opposing party.
30)
Fees said to be incurred by MFs for exercising a right of audience following the grant of such
a right by the court are in principle recoverable from the litigant on whose behalf the right is
exercised. Such fees are also recoverable, in principle, from the opposing party as a recoverable
disbursement: CPR 48.6(2) and 48(6)(3)(ii).
Personal Support Unit & Citizens Advice Bureau

31)
Litigants should also be aware of the services provided by local Personal Support Units and
Citizens Advice Bureaux. The PSU at the Royal Courts of Justice in London can be contacted on
020 7947 7701, by email at cbps@bello.co.uk or at the enquiry desk. The CAB at the Royal Courts
of Justice in London can be contacted on 020 7947 6564 or at the enquiry desk.
Lord Neuberger of Abbotsbury, Master of the Rolls
Sir Nicholas Wall, President of the Family Division
12 July 2010
Scotland: Extract from Court of Session Rules

CHAPTER 12A
LAY SUPPORT FOR PARTY LITIGANTS
Lay Support
12.A.1.(1) At any time during proceedings a party litigant may apply to the court for permission
to have a named individual assist the litigant in the conduct of the proceedings by sitting beside or
behind (as the litigant chooses) the litigant at hearings in court or in chambers and doing such of the
following for the litigant as he or she requires
(a) providing moral support;
(b) helping to manage the court documents and other papers;
(c) taking notes of the proceedings;
(d) quietly advising on
(i) points of law and procedure;
(ii) issues which the litigant might wish to raise with the court;
(iii) questions which the litigant might wish to ask the witness.
(2) It is a condition of such permission that the named individual does not receive from the litigant,
whether directly or indirectly, any remuneration for his or her assistance.
(3) The court may refuse an application under paragraph (1) only if
(a) it is of the opinion that the named individual is an unsuitable person to act in that
capacity (whether generally or in the proceedings concerned); or
(b) it is of the opinion that it would be contrary to the efficient administration of justice
to grant it.
40
(4) An application under paragraph (1) is to be made by motion and accompanied by a document,
signed by the litigant and the named individual, in Form 12.A-A.
(5) Permission granted under paragraph (1) endures until the proceedings finish or it is withdrawn
under paragraph (6); but it is not effective during any period when the litigant is represented.
(6) The court may, of its own accord or on the motion of a party to the proceedings, withdraw
permission granted under paragraph (1); but it must first be of the opinion that it would be contrary to
the efficient administration of justice for the permission to continue.
(7) Where permission has been granted under paragraph (1), the litigant may
(a) show the named individual any document (including a court document); or
(b) impart to the named individual any information, which is in his or her possession in
connection with the proceedings without being taken to contravene any prohibition
or restriction on the disclosure of the document or the information; but the named
individual is then to be taken to be subject to any such prohibition or restriction as if he
or she were the litigant.
(8) Any expenses incurred by the litigant as a result of the support of an individual under paragraph (1)
are not recoverable expenses in the proceedings.
CHAPTER 12B
LAY REPRESENTATION
Application and interpretation
12B.1.(1) This Chapter is without prejudice to any enactment (including any other provision in these
Rules) under which provision is, or may be, made for a party to a particular type of case before the court
to be represented by a lay representative.
(2) In this Chapter, a lay representative means a person who is not
(a) a solicitor;
(b) an advocate; or
(c) someone having a right to conduct litigation, or a right of audience, by virtue of
section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
Lay representation for party litigants
12B.2.(1) In any cause depending before the court in respect of which no provision as mentioned in
rule 12B.1(1) is in force, a party litigant may apply to the court for permission for a named individual (a
lay representative) to appear, along with the litigant, at a specified hearing for the purpose of making
oral submissions on behalf of the litigant at that hearing.
(2) An application under paragraph (1) is to be made
(a) by motion and accompanied by a document, signed by the litigant and the named
individual, in Form 12B.2; and
(b) subject to paragraph (3), prior to the date of the hearing at which the litigant
wishes the lay representative to make oral submissions.
(3) The court may grant an application made on the day of the hearing at which the litigant wishes the
lay representative to make oral submissions if it is satisfied that there are exceptional reasons why the
application could not have been made prior to that day.
41
(4) The court may grant an application under paragraph (1) only if it is of the opinion that it would assist
the court to grant it.
(5) It is a condition of permission granted by the court that the lay representative does not receive
directly or indirectly from the litigant any remuneration or other reward for his or her assistance.
(6) The court may grant permission under paragraph (1) in respect of one or more specified hearings
in the cause; but such permission is not effective during any period when the litigant is legally
represented.
(7) The court may, of its own accord or on the motion of a party to the proceedings, withdraw
permission granted under paragraph (1).
(8) Where permission has been granted under paragraph (1), the litigant may
(a) show the lay representative any document (including a court document); or
(b) impart to the lay representative any information,
which is in his or her possession in connection with the proceedings without being
taken to contravene any prohibition or restriction on the disclosure of the document or
the information; but the lay representative is then to be taken to be subject to any such
prohibition or restriction as if he or she were the litigant.
(9) Any expenses incurred by the litigant in connection with lay representation under this rule are not
recoverable expenses in the proceedings.
Confidentiality of documents in process
12B.3. Rules 67.3 and 97.4 (confidentiality of documents in process) apply to an individual permitted to
act as lay representative under this Chapter as they apply to a curator ad litem and reporting officer.
42
43
PART 3
Managing persistent and vexatious litigants
44
Part 3: Managing persistent and vexatious litigants

Introduction
The materials in Part 3 look at the issue of persistent and vexatious litigants.
The extracts from the papers by Clarke MR and Professor Dame Hazel Genn outline the approach the
courts have taken to managing the litigious behaviour of persistent and vexatious litigants, both under
the courts inherent jurisdiction, now codified to a large extent in the Civil Procedure Rules, and under
statute. They also set out the rationale behind such control measures, and the impact such litigants
have upon other litigants, society at large and the justice system.
The final paper, by Lester, sets such litigant behaviour into a wider context, and looks at psychological
explanations for it. The paper suggests a number of practical techniques through which the judiciary
can manage such litigant behaviour, while pointing towards a means of resolving such behaviour
outwith the justice system.
45
Managing persistent and vexatious litigants

Extracts from Clarke MR, Vexatious Litigants & Access to Justice: Past, Present,
Future (Conference on Vexatious Litigants, Prato, Italy, 2006)
18.
Vexatious litigation poses a number of threats to the efficient operation of any civil justice
system. Those threats stem from the manner in which the vexatious litigant conducts litigation
before the courts. Lord Bingham CJ (as he then was), in Attorney-General v Barker, offers perhaps
the best description of vexatious litigants, and in doing so lays bare the problems to which they
give rise. He said:
The hallmark [of a vexatious litigant] usually is that the plaintiff sues the same party repeatedly in
reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled
upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant
relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled
upon, in actions against successive parties who if they were to be sued at all should have been joined
in the same action; that the claimant automatically challenges every adverse decision on appeal; and
that the claimant refuses to take any notice of or give any effect to orders of the court. The essential
vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has
been unsuccessful and when on any rational and objective assessment the time has come to stop.
[2000] 1 FLR 759 at 764
19.
The vice identified by Lord Bingham CJ of such meretricious and persistent litigation is that
it poses a threat to the court, individual members of society and society at large. It uses up
increasingly large amounts of the scarce financial resources that are available to the courts.
It takes up scarce judicial time. Also, it has a deleterious effect on those individuals in society
who are the focus of the vexatious litigants attention, not only in terms of time and money but
equally in wider social terms through the harassing effect of such litigation and the detrimental
effect it has on the civil justice system as a whole.
...
21.
The combination of these detrimental effects on the courts and individuals necessarily gives
rise to a wider, negative, impact on society as a whole through weakening the courts ability to
properly administer justice. It is not an exaggeration to say that ultimately vexatious litigation, by
posing such a threat to the proper administration of justice, tends to undermine the rule of law.
22.
The need to protect the court, its resources, and the general public from the negative effects
of vexatious litigation presents a strong prima facie justification for restricting the ability of such
litigants to pursue litigation through the courts . . .
23.
. . . vexatious litigation has the capability to undermine the rule of law. If courts are required to
utilise their scarce financial and temporal resources on vexatious claims and applications their
ability to properly deal with claims and applications that have genuine merit will be diminished.
Such claims may not be heard due to lack of time or resources. If heard, the hearing may be
delayed for a lengthy period of time. Equally, if heard, a judgment may then be delayed because
the judge has to spend precious time dealing with a vexatious litigant, or with other matters that
have been referred to him to hear as a consequence of vexatious litigation generally. The fact
46
that it has often been said, from Magna Carta to Bentham, that justice delayed is justice denied
does not diminish its truth3. Denial of a hearing presents the application of that maxim.
24.
Delay or denial of a hearing has the potential to undermine the rule of law for the simple reason
that it calls into question the courts ability to fulfil its primary function, which is of course to do
justice according to law. It undermines the courts ability to ensure that claims and applications
are decided on their merits and that the court arrives at effective and correct judgments. Where
courts are unable to deal properly with genuine disputes in this way the fabric of civil justice, to
borrow Sir Jack Jacobs famous phrase, will wear thin and may well tear through4. If individuals,
and society as a whole, arrive at the conclusion, through experience of a civil justice system
unable to deal properly with their disputes, that the justice system is unable to deliver justice the
risk must arise that they will seek to resolve their disputes in more direct ways, ways which might
bring them to the attention of the criminal justice system. All of this tends to undermine the rule
of law.
25.
It seems to me that a court is under a duty to act in a way that furthers the rule of law. It does so
as courts are not solely concerned with ensuring that an individuals right of access to justice is
satisfied. As Edmund-Davies LJ explained in Associated Leisure v Associated Newspapers:
. . . courts are here to administer justice. The concept of justice is not confined to the interests of the
particular litigants; it embraces and extends to the protection of the common weal. 5
26.
The common weal is protected by ensuring that the proper administration of justice is not
undermined or weakened to any considerable degree, and that the rule of law is thus not
undermined, whether by the actions of a number of persistent vexatious litigants or more
generally. While any court must be very careful, as was recognised as long ago as 1840 by Baron
Alderson in Cocker v Tempest, in exercising its inherent jurisdiction to prevent its processes being
abused it appears well justified to do so where if it did not the rule of law would be weakened,
or if its ability to act as a court of justice would be compromised. Indulging litigants who seek to
abuse the courts process presents too much of a risk to matters of fundamental importance for
the courts to countenance it6.
27.
. . quite apart from what could be called the rule of law, justification of control of vexatious
litigation, control can be justified by reference to the right of access to justice. Far from being
inimical to that right, control mechanisms are in my view on the one hand wholly consistent
with it, whilst on the other do not engage the right at all.
28.
Controls on vexatious litigation are consistent with the right of access to justice for the simple
reason that vexatious litigation infringes that very right. Protecting individuals from litigation
that infringes the right of access to justice in itself supports that right. It does so because it
enables the court to maximise access to justice for litigants who have genuine claims. Moreover
vexatious litigation infringes the right of access to justice for, at least, two further reasons.
29.
First, one of the central elements of the right of access to justice is that disputes are adjudicated
within a reasonable time. Magna Carta and Bentham resonate in the common law and Article
3

4
5
6

Magna Carta, Chapter 40; Bentham, Principles of Judicial Procedure, with the outlines of a Procedure Code, in The Works of
Jeremy Bentham (ed. Bowring) (1843) (Tait, Edinburgh) Vol 2 at 19
Sir Jack Jacob, The Fabric of English Civil Justice, (Sweet & Maxwell) (1987)
[1970] 2 QB 450 at 457.
(1840 1841) 7 M & W 501: The power of the each court over its own process is unlimited; it is a power incident
to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own
process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion. Cited
with approval in Bhamjee at (11).
47
67. Delay or denial of a hearing as a result of vexatious litigants consuming disproportionate

amounts of the courts time and financial resources represents a restriction on the right of other
individuals very own right of access to justice. This right is not a solitary right, which exists in
glorious isolation. It is an indivisible right. It is, as Lord Justice Laws stated correctly, one which
is as applicable to claimant and defendant in any one set of proceedings. As he put it, while
rejecting an argument that Article 6 of the European Convention could be relied on to justify a
claim continuing after a great deal of delay by one of the parties:
It would be wholly lamentable if the salutary provisions of the Human Rights Act and here, in
particular, Article 6 of the Convention were allowed to be deployed to run a coach and horses
through properly considered and established procedural rules whose purpose is to ensure a fair trial to
all parties and to the litigation to which they are applied. 8
30.
The point Laws LJ is making is that the right to fair trial, and court rules designed to implement
that right, are as applicable to the claimant as they are to the defendant. If the court is too
lenient in favour of a claimant who has failed to progress his case within a reasonable time it
runs the risk of denying the defendant his right to receive adjudication within a reasonable
time. In assessing the right to a fair trial courts must not forget that the right applies to and
encompasses both claimant and defendant at the same time.
31.
It can be said that Laws LJs statement is equally applicable to litigants in one set of proceedings
and litigants in other proceedings. The grant of disproportionate resources to any one set
of proceedings, or one litigant, could infringe the right to a fair trial on the ground that it
diminishes the resources available to other litigants. It could be said that for this very reason
English civil procedure now imposes a duty on parties to litigation. It is a novel duty; one which
has never before been articulated in English procedure and was introduced following Lord Woolf
MRs reforms9. It is the duty imposed on parties to assist the court in furthering the overriding
objective of civil procedure. Furthering the overriding objective, which is to act fairly, requires
the court and the parties to ensure, amongst other things, that no more than proportionate
time and resources are expended on any particular set of proceedings. What is proportionate is
assessed by reference to all proceedings before the courts.
...
35.
Finally, it can justifiably be said that vexatious litigation does not in any event engage the right
of access to justice. It does not because that right is the right to have genuine disputes properly
and carefully adjudicated on their merits. The dispute which the vexatious litigant brings is in
most cases one which has already been carefully and properly adjudicated. The vexatious claim
is one which seeks to reopen or relitigate a dispute that has already been properly disposed
of by the courts. The vexatious claim is thus one which abuses the courts process. The right of
access to justice is not a right to abuse the courts process. Restrictions placed on an individuals
ability to bring abusive proceedings cannot therefore infringe the right of access to justice.
7
8
9
Union Alimentaria Sanders SA v Spain (1990) 12 EHRR 24; Scopelliti v Italy (1994) 17 EHRR 493
Arogundade v Mayor & Burgess of London Borough of Brent (No 2) [2002] HLR 18 at (21)
CPR 1.1, 1.2, & 1.3
48
Extracts from Genn, Do-it-yourself law: access to justice and the challenge of selfrepresentation C.J.Q. 2013, 32(4), 411
The phenomenon of vexatious or troublesome litigation is not new. As one commentator remarks
the courts have battled with both the ingenuity and pertinacity of such litigants since Elizabethan
times when it was found necessary to take measures to avoid trifling and frivolous suits in law in Her
Majesties court in Westminster.
Although legal scholars have not devoted much attention to the topic, a few psychiatrists have
spent some time analysing the behaviour of vexatious or persistent litigants. A relatively recent study
describes different varieties of querulous behaviour (from the Latin for plaintive murmuring)
involving the unusually persistent pursuit of a personal grievance in a manner seriously damaging
to the individuals economic, social, and personal interests, and disruptive to the functioning of the
courts and other agencies attempting to resolve the claims. Querulous litigants comprise three distinct
categories that present with a relatively common constellation of behaviours that may, or may not be
manifestations ofmental disorder. These are unusually persistent complainers, indefatigable litigators,
and vexatious litigants.
Reviewing individuals referred to their clinicsevidently extreme examples of all categoriesthe
authors found that those who used the courts extensively often appeared as unrepresented litigants
because they had exhausted their funds or the patience of lawyers, and sometimes because they
believed that nobody else could be trusted properly to present their case. A common pattern was an
individual who had been the victim of some injustice, but was ultimately led into a devastating social
decline by the quest for justiceto right the wrong done to them. The distinction between querulous
and difficult people is that difficult people will pursue claims filled with a sense of being victimised
and refuse to contemplate any but their own version of eventsbut will, in the end, settle for the
best deal they can obtain. Querulousness, on the other hand, Mullen and Lester argue, involves not
just persistence, but a totally disproportionate investment of time and resources in grievances that
grow steadily from the mundane to the grandiose, and whose settlement requires not just apology,
reparation, and/or compensation but retribution and personal vindication.
To this extent, the litigants will inevitably be frustrated because they are seeking remedies that the
courts are unable to offer. In trying to understand how apparently normal people become querulous
litigants, Mullen and Lester suggest that people have different vulnerabilities. Some people with low
pre-existing vulnerability may, because of some life event and the severity of the provocation, be
precipitated into querulousness while, at the other extreme, are those where querulousness is imminent
and requires only a modest stimulus to initiate. Before becoming embroiled in the pursuit of grievances,
many of the cases studied for the research involved people who were functioning individuals, with
families and friends and without obvious antisocial traits. They did, however, share some characteristics
that potentially made them vulnerable to querulousness personalities with obsessional traits, selfabsorption, and more than the usual levels of sensitivity and self-referenceSome had limited social
networks, were in marriages lacking intimacy, and were people who felt their true abilities had never
been adequately recognized: in short, rigid, disappointed people short on trust, and long on selfimportance. The Personal Support Unit in the Royal Courts of Justice, which provides assistance to
unrepresented parties, estimates that around one-third of its 3,000 annual caseload of clients have
some form of mental health issue. We cannot know how many LIPs demonstrating abnormal behaviour
have been driven to this state by litigation. But whether abnormally persistent or vexatious litigants
should have our sympathy or opprobrium, it cannot be denied that they present a significant challenge
to the courts and place a strain on judicial and court resources.
Since the mid-nineteenth century English courts have taken active steps to restrain various types of
activities regarded as repetitive, frivolous, without merit, or pernicious . . . The legislation first enacted at
49
the end of the 19th century has since been exported around the world. Today, legal behaviour judged
vexatious in England and Wales continues to be regulated by common law and statute. A person
defined as vexatious will be prevented by a court order from issuing proceedings without leave of the
court. The Attorney General has the power under s.42 of the Senior Courts Act 1981 (previously the
Supreme Court Act) to apply to the High Court for an order to restrict a person who repeatedly makes
applications to the court, which the court deems to be without merit. Once a referral has occurred, the
Treasury Solicitor will launch an investigation into the litigants behaviour in the courts. In determining
whether to declare a litigant vexatious or not, the court will consider a number of factors. The precise
number of proceedings required to meet the test is not specified in the legislation, but guidance from
the Treasury Solicitor suggests that normally they would expect around six separate claims to have
been commenced which have been struck out or unsuccessful before an application would be made to
the court for an order. The court will take into account all the surrounding circumstances including the
general character of the litigation, the degree of hardship suffered by defendants and the likelihood of
the conduct continuing if an order is not obtained. Such orders may be either for a specified period of
time or indefinite, and may apply to civil proceedings, criminal proceedings or both.
It is possible that changes to civil procedure since the Woolf reforms in 1999 have made it easier for
litigants to harry the courts with suits that have little merit. Certainly, the number of vexatious litigants
is rising rapidly as, we suspect, is the number of litigants in person. The list of those declared habitually
vexatious in the United Kingdom (published by the Ministry of Justice) currently has 190 names. The
earliest listed name was in 1955 and the most recent was in 2010, but interestingly almost one-third (58)
have been listed since 2000. In that year, in a case concerning the fallout from relationship breakdown
and contact issues, Lord Bingham defined vexatious litigation and distinguished it from habitual and
persistent litigation. He said that the hallmark of vexatious proceedings is that
it has little or no basis in law; that whatever the intention of the proceeding, its effect is to subject the
defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue
to the claimant; and that it involves an abuse of process of the court in a way which is significantly
different from the ordinary and proper use of the court process.
The hallmark of persistent and habitual litigious activity, by contrast, seems to be that the plaintiff
sues the same party repeatedly in reliance on essentially the same cause of action automatically
challenges every adverse decision on appeal; andrefuses to take any notice of or give any effect to
orders of the court. The essential vice of habitual and persistent litigation is keeping on and on litigating
when earlier litigation has been unsuccessful and when on any rational and objective assessment the
time has come to stop.
There has been particular concern at the rise in LIPs and habitual litigants turning up in the Court of
Appeal, and this dates back at least to the mid-1990s. In 2003, the Master of the Rolls reported that
there had been a significant increase of obsessive litigants determined to leave no procedural stone
unturned, regardless of whether they have any arguable ground of appeal. Nearly 40% of all who
apply for permission to appeal are litigants in person, of whom only one tenth can demonstrate that
they have arguable grounds of appeal. Yet each of them is entitled to an oral permission hearing. Each
hearing takes about half an hour.
After the case of Bhamjee in 2003, involving a litigant who had made repeated applications to the court,
the Court of Appeal experimented with a new procedure for identifying and blocking permission to
appeal applications (PTA) deemed to be Totally Without Merit (TWM). An evaluation of the experiment
conducted over the period of one court term showed that more than two-thirds (68 per cent) of
oral PTA hearings involving LIPs were deemed to be TWM as compared with 27 per cent of cases not
involving a LIP. Some 77 per cent of paper evaluations involving LIPs were marked as TWM as compared
with only 14 per cent of paper evaluations involving represented parties. The most common cases
50
involving LIPs were immigration and asylum; employment appeals; general procedure; and landlord,
tenant and possession. Those least likely to involve LIPs were personal injury, judicial review, general
commercial and professional negligence cases.
The potential drain on court and opponents resources is illustrated by a single case observed for the
TWM evaluation. This case involved an oral hearing of a permission to appeal application by a persistent
LIP. The Court of Appeal judge was there, solicitor for the respondent local authority was there, and
counsel for the respondent was there, all having prepared what had become voluminous paperwork.
The LIP, however, did not appear. Nonetheless, the LIPs application was duly considered by those in the
court.
The current powers of the courts to deal with persistent unmeritorious claims and applications
were codified in 2004 and are now set out in the Civil Procedure (Amendment) Rules 2013. Part 3.11
contains the courts power to impose one of three different types of Civil Restraint Order. A Limited
Civil Restraint Order stops a party who has made two or more applications that are TWM from making
further applications in the same proceedings without first obtaining permission from a specified judge.
An Extended Civil Restraint Order is wider and prevents further connected applications or claims from
being launched without permission. These two-year orders might be considered for someone who
has persistently issued TWM claims or applications. General Civil Restraint Orders prevent any further
applications or claims at all without permission from a judge. These orders can be imposed on someone
who
persists in issuing claims or making applications which are totally without merit, in circumstances
where an extended civil restraint order would not be sufficient or appropriate.
These orders are for renewable two-year terms. The Ministry of Justice publishes the names of those
against whom General and Extended Civil Restraint Orders have been imposed. There are currently 35
general orders and 68 extended orders in force.
Cases involving persistent, habitual or vexatious litigants present genuine difficulties for the courts.
The line between legitimate pursuit of an arguable case and the inability or refusal to achieve closure
after defeat is far from clear or bright, but effective measures to manage TWM litigation need to be
pursued. In particular, work needs to be done on finding ways to identify and close down potentially
troublesome litigation at an early stage. This is an area where the collection and analysis of data relating
to repeat litigation would be of significant benefit.
The need to deal with habitual and vexatious LIPs, however, should not divert attention from the
challenge relating to the rapidly increasing category of legitimate self-representing litigants grappling
with legal problems and disputes.
Extract from Dr. Grant Lester, The Vexatious Litigant, Judicial Officers Bulletin, April
2005 Volume 17 No 3 http://www.aija.org.au/acag09/Papers/Lester%201.pdf
Difficult complainants may also suffer from a major psychiatric illness, most often schizophrenia. These
complainants are easily identified as they have the general signs of the illness, are aggrieved primarily
by feelings of persecution and victimisation, and the content of their complaints arises totally from their
delusional beliefs, which are often bizarre and in a constant state of flux. As a result, it is often impossible
to define, let alone resolve, their complaints. Their preexisting major psychiatric illness requires
treatment, rather than the complaint being initially addressed. Others have egocentric personalities and
are incapable of viewing any perspective other than their own. They are fearful and suspicious of others
and a grandiose sense of entitlement has them constantly over-valuing their own worth. These chronic
grumblers simply lurch from irritation to irritation ensuring that their whole life is a series of complaints.
51
At times, these chronic grumblers may become querulant (morbid complainants). In general, they
have a belief of a loss sustained, are indignant and aggrieved and their language is the language of
the victim, as if the loss was personalised and directed towards them in some way. They have overoptimistic expectations for compensation, over-optimistic evaluation of the importance of the loss to
themselves, and they are difficult to negotiate with and generally reject all but their own estimation of a
just settlement.
They are persistent, demanding, rude and frequently threatening (harm to self or others). There will be
evidence of significant and increasing loss in life domains, driven by their own pursuit of claim. Over
time, they begin to pursue claims against others involved in the management of claims, be it their own
legal counsel, judges and other officials. While claiming a wish for compensation initially, any such offers
never satisfy and their claims show an increasing need for personal vindication and, at times, revenge,
rather than compensation or reparation.
Despite 150 years of psychiatric research into querulous paranoia, there is no consensus as to
the underlying pathology. Theories range from an underlying organic disease process, similar to
schizophrenia, through to psychogenic processes; that is, certain vulnerable characters are sensitised by
certain life experiences and are then struck by a key event which triggers their complaining. Preceding
the querulousness, they have often received some form of blow to their individual sense of self-esteem
or security. This was often in the nature of a loss of relationship, through separation or death, ill health or
loss of employment.
The key event is usually a genuine grievance and seems to echo previous losses. The key event is
often of a type to threaten the (male) status symbols of prestige, position, power, property and rights.
Environmental factors influence their complaint.
In general, these difficult complainants are middle aged and males predominate 4:1. Prior to the
development of the complaint, they are reasonably high functioning, with a past history of education
and employment. The majority of querulant complainants have had partners, however, their
relationships or marriages are often failing or have ended. It is uncommon for them to have a past
criminal history, psychiatric history or a history of substance abuse.
...
Managing the persistent complainant
There are existing rules for courts to manage difficult complainants. Superior courts have inherent
powers to prevent an abuse of process. The policy behind these powers is the protection of courts
and the maintenance of public confidence in the administration of justice. To prevent an abuse of
process, courts may strike out proceedings which disclose no reasonable cause of action or defence, or
which may cause prejudice, delay or embarrassment in the proceedings. The courts may also prescribe
certain procedures. For example, the court may restrain a litigant from making oral submissions by
requiring that the litigant make submissions only in writing. There is a separate power to prevent a
person exercising a right of access to the court. Under the Supreme Court Act 1970 (New South Wales),
a litigant may be declared vexatious on application by the Attorney General. A vexatious litigant is
prevented from instituting proceedings in any court without leave of the court.
Management of the querulant broadly falls into three categories:
1. Management by staff of complaints and ombudsmans offices, and by staff from, for example, registry
offices or court libraries.
2. Management by the judiciary.
3. Psychiatric management.
52
For the purposes of this article I will only outline guidelines for judicial officers.
1.
First: Do No Harm. A medical aphorism which highlights your goals, which should be safety and
containment rather than completion and satisfaction.
2.
Recognition via the six Vs they display volatile emotions, feel victimised, seek vindication,
produce voluminous and vague communications, and vary their demands.
3.
Maintain rigorous boundaries. They will rapidly form attachments to those they feel are
favouring them and feel catastrophically betrayed if the favourable treatment is not
maintained.
4.
They are responsive to hierarchy and the formality of court must be maintained.
5.
While they appear legally hyper-competent, they have a very shallow knowledge of the law. All
communication with them should be simple, repetitive, and there should be recognition that
their understanding of the law is generally no deeper than the average citizen.
6.
It is important to clearly and repetitively maintain their focus on what the court is able to offer in
terms of outcomes.
7.
More time granted will lead to more confusion. They are disorganised and overwhelmed and
more time rarely changes this.
8.
Take all threats seriously and be aware of the psychological, as well as physical, safety of self and
court staff.
9.
Any recommendation that they seek psychiatric support or evaluation will lead to extremely
angry and potentially threatening responses. The role of psychiatry is generally limited.
However, for those individuals who threaten self harm or harm to others, or carry out aggressive
behaviour, mandated psychiatric treatment is important.
10. Never seek to specialise in an individual. Always share the load with others.
...
53
PART 4
LIPs: Challenges and Practical Solutions
54
Part 4: LIPs: Challenges and Practical Solutions

Introduction
The materials in Part 4 look at some of the practical steps taken to enable the justice system to deliver
effective access to justice for LIPs.
The first set of materials consists of studies of LIP experiences of the justice system. The first, by
Williams, summarises the conclusions reached following a review of the available literature. The second,
extracted from the recent draft report into Access to Justice in Australia, by the Australian Productivity
Commission, assesses the impact LIPs have on the justice system, their experiences of the system and
considers what steps can be taken to improve their ability to achieve effective access to justice. The
third, by Macfarlane, outlines a number of recommendations, arising from empirical studies, for the
production of effective reforms to assist LIPs.
The second set of materials consists of suggestions for further reforms aimed at rendering the justice
system more accessible to LIPs. Lord Dyson MRs paper outlines the need to simplify legislation, utilise
the internet to improve accessibility to judgments to increase legal literacy and develop Roger Smiths
(formerly Director of Justice) idea of Legal Direct to provide legal advice and assistance via the internet.
Sorabjis paper considers the need for the judiciary and the Civil Procedure Rule Committee to take
steps to ensure LIPs understand court orders and consider the need to introduce dedicated rules (or
Practice Directions) which modify the general CPR where LIPs are concerned.
The third set of materials consists of extracts from materials created to assist LIPs. The first extract is
taken from Californias Benchguide for handling cases involving LIPs. It contains a number of practical
approaches to assist LIPs, enabling them to better understand the trial process. The remainder of the
extracts are drawn from England and Wales. They cover guidance to bringing small claims, guidance
to LIPs about making interim applications in the QBD, how to draft a skeleton argument, to prepare a
court bundle, an outline of the basic structure of litigation, and, finally, an outline of the Chancery LIP
advocacy scheme.
The various materials from England and Wales should be considered by reference to the
recommendations and conclusions set out in the first set of materials. To what extent, for instance, are
the English materials written to the standard Flesch-Kincaid reading age specified in the Macfarlane
study? To what extent do they use terminology that LIPs may find problematic? To what extent were
they drafted in consultation with LIPs? How might they be improved?
55
LIPs: Challenges and Practical Solutions

(1) Reform Reports and Recommendations
Extract from Kim Williams, Litigants in person: A literature review
Ministry of Justice (2/11), page 1
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217374/litigants-in-person-literature-review.pdf
Key points

While some good quality evidence existed, this was limited. Together the studies in this review
provide useful indicators of the types of motivations, problems encountered and outcomes for
litigants without legal representation (litigants in person). However, there are still a number of
gaps in our understanding of this issue.
The term litigant in person covers a range of scenarios. Individuals may have received varying
degrees of legal advice; may have chosen to litigate or had claims brought against them;
and may or may not have themselves participated in proceedings. One UK study suggested
unrepresented litigants in family and civil cases were common. Most unrepresented litigants
were inactive, particularly in civil cases.
It appeared litigants in person tend to be younger, and have lower income and educational
levels, than those who obtain representation. Suggested reasons for lack of representation
included funding difficulties and the belief that cases were simple enough to be heard without a
lawyer.
Litigants in person could face problems in court, such as understanding evidential requirements,
identifying legally relevant facts and dealing with forms. It was suggested that the oral and
procedural demands of the courtroom could be overwhelming.
Research with other court participants, such as court staff, the judiciary and other parties
representatives, suggested they felt compensating for these difficulties created extra work and
possibly presented ethical challenges.
The evidence on the impact of litigants in person on case duration was mixed. This appeared
to be influenced by how active the litigant in person was and by case type. The evidence
suggested cases took longer when the unrepresented litigant was active and could take
less time when the litigant was inactive. Some studies found that family cases without
representatives were less likely to settle, increasing case duration.
The weight of the evidence indicated that lack of representation negatively affected case
outcomes, although few of the studies reviewed controlled fully for case complexity. This was
across a wide range of case types. There were indications that in some cases specialist lay
representatives were as effective as legally qualified representatives.
A number of studies investigated assistance for litigants in person, presenting positive findings
on litigant and court staff satisfaction where such assistance was received. There was little
research examining the impact of the various methods of assistance on case outcomes.
56
Extract from Australian Productivity Commission, Access to Justice Arrangements

(Draft Report, April 2014) http://www.pc.gov.au/__data/assets/pdf_file/0008/135296/access-justice-draft.pdf
Pages 19 20
The effectiveness of the adversarial system is premised on parties being on an equal footing, but this is
not always the case. Differences in the bargaining power of litigants are most evident when comparing
the two extremes self represented litigants and well resourced, repeat users of the system, such as
governments and big businesses. If it is acknowledged that inequalities in bargaining power affect
justice, it begs the questions: how might self represented litigants be placed on a better footing; and
how might the bargaining power of well resourced litigants be kept in check?
When considering whether and how best to assist self represented litigants, context is important. In
some tribunals and lower courts, self representation is the norm and poses few problems. However, self
represented litigants can be at a disadvantage in more adversarial settings such as higher courts.
As Faulks said, there are three ways to respond to self representation, one is to get them lawyers, the
second is to make them lawyers and the third is to change the system . . . The Commission considers
that ultimately, the civil justice system needs to better accommodate self represented litigants. Many of
the changes that would benefit self represented litigants would also benefit other court users.
Courts and tribunals have already made efforts to simplify forms and procedures and provide
information to support self representation. There is still scope to improve outcomes, but there are limits
to the extent to which such measures can assist self represented litigants, particularly in complex cases
in higher courts.
Self represented litigants in higher courts need more direct and personalised forms of assistance.
Equipping judges and court staff through training and clearer rules and guidelines is essential to give
them the confidence to assist self represented litigants while meeting their obligations of impartiality.
Duty lawyer schemes can help, but legal assistance with basic, discrete tasks that could be offered to
self represented litigants before their matter reaches court (or used to divert them away from the court
system) also hold promise. Self represented litigants should also be able to rely on assistance from non
lawyers, with appropriate protections in place.
Pages 62 63
Chapter 14: Self represented litigants
DRAFT RECOMMENDATION 14.1
Courts and tribunals should take action to assist users, including self represented litigants, to clearly
understand how to bring their case.

All court and tribunal forms should be written in plain language with no unnecessary legal
jargon.

Court and tribunal staff should assist self represented litigants to understand all time
critical events in their case. Courts and tribunals should examine the potential benefits of
technologies such as personalised computer generated timelines.

Courts and tribunals should examine their case management practices to improve outcomes
where self represented litigants are involved.
57

Governments, courts and the legal profession should work together to develop clear guidelines
for judges, court staff, and lawyers on how to assist self represented litigants within the courts and
tribunals of each jurisdiction. The rules need to be explicit and applied consistently, and updated
whenever there are changes to civil procedures that affect self represented litigants.
Governments should consider how lessons from each jurisdiction can be shared on an ongoing
basis.
Governments, courts and tribunals should work together to implement consistent rules and
guidelines on lay assistance for self represented litigants.
Pages 423 433

Self represented litigants
Key points

Context is important when considering the impacts of self representation on the civil justice
system. In some tribunals and lower courts, self representation is the norm and poses few, if
any, problems.

Higher courts that deal with more complex disputes and questions of law are less suited to
self representation. While levels of self representation in these courts are lower, some self
representation does occur and is inevitable.

There are legitimate concerns about self representation in higher courts, ranging from
a reduced likelihood of a just outcome for the self represented litigant, to the costs and
obligations that self represented litigants place on the courts and other parties.

Little is known about the characteristics and impacts of self represented litigants. Courts and
tribunals should collect more data to inform policy.

Courts and tribunals already provide users with significant amounts of information, and have
substantially changed their processes to make self representation easier. Duty lawyer schemes
also offer help on the day in court. However, more should be done.

Judges and court staff need training and clearer guidance on how they can assist self
represented litigants while remaining impartial.

Unbundled legal services enable access to some legal advice when full representation is
unwanted, unaffordable or unavailable. Basic unbundled legal services can efficiently assist self
represented litigants where most needed, such as in complex disputes in formal settings like
superior courts.
...
Self representation affects outcomes
The limited evidence that exists suggests that self representation does lead to worse outcomes for the
litigant. For example, Supreme Court of Victoria data show that the success rate of appeals by SRLs in
the Court of Appeal was very low 4 per cent in 2011 12, and zero in 2012 13, compared with 29 per
cent for all appeals. An Australian Law Reform Commission (ALRC) survey of Administrative Appeals
58
Tribunal (AAT) case files10 also found that self represented applicants were less likely to be successful:
excluding agency appeals, applicants were successful in 42% of
all the sampled AAT cases. An unrepresented applicant won (albeit
sometimes only in the sense of getting the case remitted) 23% of
the time compared with 51% of the time for represented applicants.
Where the applicant had a final hearing the figures were 17% success
for unrepresented applicants and 54% if represented. Research
conducted by the University of Wollongong and the Justice Research
Centre delivered similar results. (See Gamble and Mohr (1998), ALRC 2000,
p. 795)
...
The ALRC (2000) noted that some SRLs in the AAT abandon meritorious cases, or persist too long with
unmeritorious cases. Webb (2007) claimed that SRLs make more serious errors than lawyers when
bringing matters before the court (but around the same number of minor or middling errors).
International studies also suggest that self representation negatively affects outcomes, but here too the
evidence is limited and comparisons are difficult due to institutional differences. NSW Legal Aid (sub.
68) and Beg and Sossin (2012) cited Canadian and United States studies which show that representation
positively influences outcomes. However, a recent United States randomised evaluation found no
significant effect on outcomes and, following a review of the literature, virtually no credible quantitative
information on the effect of an offer of or actual use of legal representation (Greiner and Pattanayak
2012).
Identifying whether self representation per se affects outcomes is difficult because of the problems in
separating the effect of self representation from other factors, such as the merit of the claim or defence,
or the skill of the litigant (ALRC 2000; VLRC 2008). Using Greiner and Pattanayaks expression, how do
we separate the hopeless, sure win, or representation makes a difference cases? (2012, p. 2209). These
measurement difficulties mean that the studies above need to be interpreted with some caution.
How does self representation affect the justice system?

Context is important when considering the impacts of self representation on the justice system.
According to the AIJA (2001), the extent to which SRLs have an adverse impact on the justice system
varies based on a number of factors, including:

the nature of the jurisdiction (for example, whether it is a court or tribunal)

whether a matter is regarded as routine or complex.
An increase in SRLs applying for divorce is regarded as a success by the Family Court, although the
presence of SRLs in contested matters is regarded as more problematic (AIJA 2001). Some small claims
courts and most tribunals are geared around a norm of self representation.
Self representation is more problematic for higher courts. The adversarial nature of their proceedings
place a heavy responsibility on parties to provide all relevant facts and law, which is why legal
representation is expected (Stewart 2011). The AIJA said:
Of particular importance in higher courts are the rules of evidence.
The court and tribunal systems are to varying degrees designed
10
Information was collected from 1665 case files finalised during August, September and October 1997 which were considered
representative of cases before the AAT during the 1997 98 financial year, with success deemed if the decision subject to review
was set aside, varied or remitted, either by AAT decision or consent (ALRC 1999a).
59
around professional people able to work efficiently in these

environments. (2001, p. 4)
SRLs are said to create difficulties for courts by taking up more time and resources than legally
represented parties. Legal Aid NSW (sub. 68) said (citing a Canadian study) that SRLs tend to: raise
irrelevant concerns to the legal issues in question, cause frustration to judges; prolong the process;
submit incomplete documentation; rely on judges to an extent that raises concerns about the
appearance of bias; and rely on opposing counsel to an extent that raises concerns about their ability to
properly represent the interests of their own client.
The Commission is aware that the Supreme Court of Victoria keeps track of the hours that staff spend
with SRLs to assess the impact of self representation. The Family Court monitors SRLs as a measure of
the complexity of its caseload for contested matters. The Family Court said that:
Self represented litigants add a layer of complexity because they
need more assistance to navigate the court system and require
additional help and guidance to abide by the Family Law Rules
and procedures. (AGD sub. 137, p. 14, quoting the Family Court of
Australia 2013a)
Although evidence of the effect of SRLs is mixed, most studies suggest that they do take up more court
resources . . .
There is also evidence that SRLs use more tribunal resources. Legal Aid NSW (sub. 68) stated that in
social security matters before the AAT, some processes can take three times longer for example,
a preliminary conference which generally lasts 10 minutes can last at least 30 minutes when the
applicant is self represented, often with little progress. An ALRC (1999a) assessment of the impact of self
representation on case events in the AAT (albeit dated and not taking into account recent reforms) also
found that:

cases where applicants are represented more often have consent outcomes and go to a hearing
less often
represented applicants had significantly more case events before finalisation
self represented applicants were more likely to drop out early, or go the full distance to a final
hearing.
Others suggested that the costs of SRLs are not properly quantified, despite the persistent anecdotal
complaints. The ALRC (2000) commented that any additional costs caused by self representation remain
unsubstantiated and unquantified, while acknowledging judicial statements about the difficulties
courts face when parties are self represented.
Impact on others
Self representation can have effects beyond the individual and the justice system. Legal Aid NSW
observed that:
The economic and social cost of self represented hearings is not
just borne by the self represented individual and the community,
but also the other party to the litigation. (sub. 68, p. 51)
Dewar, Smith and Banks (2000) reported that judges, judicial registrars and registrars believed that, in 41
per cent of family law cases involving an SRL, the other party was disadvantaged. This is consistent with
perceptions in other jurisdictions, for example:
60
In a Nova Scotia study 87.5% of judges thought that self represented

litigants were generally disadvantaged by a lack of representation,
while 70% thought the other party was also disadvantaged. (Legal Aid
NSW, sub. 68, pp. 5152, citing University of Toronto Faculty of Law
2011, p. 21)
Perceptions of fairness on both sides of a case can be negatively affected by the participation of an
SRL. The represented party may believe that the court has unduly assisted the SRL, while the SRL may
feel that the court has failed to provide the level of assistance required to ensure that he or she could
properly participate (Stewart 2011).
Several submissions raised concerns about the impact of self representation on the other party where
family violence is involved. The Womens Legal Service Victoria (sub. 33) and the Law Council of Australia
(sub. 96) raised this in relation to recent changes to the Victoria Legal Aid guidelines. These changes
provide that, where one party is unrepresented at trial in a parenting dispute, the other party is not
eligible for legal aid (subject to limited exceptions). Legal Aid NSW noted that it:
particularly holds concerns about cases where an alleged
perpetrator of violence or abuse who is self representing is allowed
to cross examine the alleged victim or the converse. These practices
have led to concern that self representation can lead to further abuse
through a court sanctioned process. These practices can result in the
additional social and economic costs that arise from family violence.
(sub. 68, p. 53)
Some jurisdictions have special procedures in place for cross examining witnesses where a self
represented person is involved. For example, the Restraining Orders Act 1997 (WA) limits the ability of
a SRL who is bound by a restraining order to directly cross examine a person with whom they are in a
family relationship, or any child witness.
SRLs can make the job of the opposing partys lawyer more complicated by, for example, causing
difficulties in meeting professional conduct requirements (QPILCH and Queensland Law Society 2013;
New South Wales Bar Association, sub. 34). QPILCH noted that:
Anecdotally, members of the legal profession offer the opinion that
a self represented opposing party makes a case more difficult, and
that the Judge will go out of her or his way to provide advice and
explanations to the self represented party. (sub. 58, p. 23)
The New South Wales Bar Association commented on the difficulty faced by barristers in situations
involving SRLs:
The kinds of issues which arise surrounding self represented litigants
mean that some clarification is required regarding the application of
the rules in these situations. For example, there is general prohibition
restraining a barrister from conferring or dealing directly with the
party opposed to the barristers client. Further, a barrister must take
reasonable steps to avoid the possibility of becoming a witness in
the case. Very real difficulties may arise where, for example, a barrister
deals directly with a self represented litigant in relation to settlement
negotiations and an issue later arises as to what was or what was not
said in the relevant discussions and whether or not an agreement was
reached in those discussions. (sub. 34, p. 5)
61
Although lawyers may prefer to deal with each other, they are becoming accustomed to SRLs. Dealing
with SRLs challenges lawyers to work in a more open manner while advancing their clients case, and to
communicate with clarity and without jargon (Pulsford 2010).
When assessing these impacts of self representation and any consequent policy responses it is
important to adopt a community wide perspective. In a simple, court based dispute, a litigant could
be better off if they self represent (for example, in cases where their expected return is not, or is only
moderately, affected by having formal legal representation). But in doing so, the SRL could raise the cost
to courts. If the savings to the individual outweigh any additional costs imposed on the court system,
the community as a whole is better off. Looking at one side of the ledger by, for example, focusing on
the impacts on courts alone, can be misleading.
Conversely, where a party self represents and this imposes substantial costs to themselves, the
opposing party and the relevant court or tribunal the community as a whole may be worse off. The
question becomes, how can these costs best be avoided? The response need not be through publicly
funded legal assistance services a range of options are available. These are explored in the following
section.
How effective are current measures, and what more could be done?
Faulks identified three ways to respond to self representation:
one is to get them lawyers, the second is to make them lawyers and the third is to
change the system. (2013, p. 2)
Although many assume that the solution to the problem of self representation is to arrange for legal
representation, the United Kingdom Judicial Working Group on Litigants in Person presented a different
perspective:
litigants in person are not in themselves a problem; the problem lies with a
system which has not developed with a focus on unrepresented litigants. (Judiciary
of England and Wales 2013, p. 6)
The former Ontario Court of Appeal Justice Osbornes 2007 Civil Justice Reform Project also said that:
the civil justice system must exist to serve members of the public whether
represented or not. (Beg and Sossin 2012, p. 197)
Although there is no clear line indicating when self representation is and is not appropriate, minor or
low level disputes in informal settings with relatively clear and straightforward issues in dispute are
more suited to effective and efficient self representation. While some participants considered that legal
representation in minor claims facilitates efficient proceedings (Adelaide Law School, sub. 16), others
said that people should legitimately expect to resolve their disputes without legal representation in
tribunals and magistrates courts.
Making it easier to use the system
Efforts to simplify and demystify Australias civil justice system in recent decades have made it easier
to self represent. Courts and tribunals have assisted SRLs in a number of ways, including through more
informal and flexible hearings, simplified forms and procedures, and assisting parties to understand
procedures and the issues at hand. There is scope for many of these reforms to be more broadly
adopted and further developed.
62
Simplifying the law

The law itself is a source of complexity in the justice system (chapter 3 and chapter 5), making it more
difficult for people to self represent. Participants noted that the average lawyer, let alone the average
person, is struggling with increasing complexity in areas such as social security law and taxation law.
QPILCH said:
Access to justice starts with participants having an understanding of the framework
within which the players operate the law itself. Having even a high level
understanding of the law can help people recognise when they may require assistance
with a legal problem, as well as enable them to use the legal system with more
confidence. (sub. 58, p. 14)
Legislation that is difficult to read and understand is part of the problem.
Unfortunately, in recent times, legislation has reflected
social patterns in becoming more complex as it
addresses more challenging issues in the face of heavy
scrutiny. However societys awareness and understanding
of the law which governs it is heavily dependant on
legislation being easily accessible and understood.
(QPILCH, sub. 58, p. 14)
The President of AAT, and former Commonwealth Attorney General, Justice Duncan Kerr commented
to the Commission that the way legislation is drafted can be a problem, especially for people
self representing in tribunals. The Commonwealths drafting style, ostensibly purposive but in
practice more committed to the ideal of precision, was said to have generated legislation which
was overly prescriptive, detailed, and often impenetrable. Not only in the obvious areas of taxation
and corporations law, but also in the definition of welfare rights and their exceptions and when
interrelationships with other legislation had to be considered. Altering any established culture of
drafting would not be simple: new drafters follow established protocols unless educated otherwise. But
laws passed by the Parliament should be intelligible to a well educated reader and regulatory costs
for litigants, tribunals and courts increase when they are not . . .
Simplifying court procedures and forms
While court rules and procedures are comprehensible to lawyers and judges, they can baffle SRLs. Lord
Woolf observed:
Only too often the litigant in person is regarded as a problem
for judges and for the court system rather than the person
for whom the system of civil justice exists. The true problem
is the court system and its procedures which are still too
often inaccessible and incomprehensible to ordinary people.
(Webb 2007, p. 167)
. . . Legal Aid NSW (sub. 68) argued that SRLs in the family law system are particularly disadvantaged
by complex court processes, hampering their ability to resolve their problems and increasing costs for
parties and legal assistance services. QPILCH suggested looking to other industries for ways to improve
court forms:
Courts should consider engaging a plain English language
expert to review court forms. While this may appear
burdensome and impossible for the complexity of court
forms in their current state, the task is not impossible given
consumer facing industries such as banks often create
disclosure packs for customers in plain English which explain
complex provisions. (sub. 58, p. 13)
63
Strict court timelines also cause difficulties for SRLs. Timing can be confusing and unfamiliar, and failure
to lodge documents in time can completely extinguish rights. QPILCH suggested that:
Registries could assist litigants to understand the complexity
of court deadlines through providing a timeline of when
documents need to be submitted at the time of filing court
documents. This computer generated timeline could serve
to alleviate the confusion regarding timelines. (sub. 58, pp.
1213)
Although simplified procedures and court forms can help, they are an inadequate response on their
own. As the AIJA (2001) pointed out, expert advice must be given in conjunction with simplified
procedure and there is no advantage in creating forms that are simpler than the causes of action for
which they are intended.
Shifting towards active case management
More active case management . . . redefines the role of a judge from a relatively passive role to a more
activist one, providing scope for greater judicial intervention to accommodate SRLs where appropriate.
Macfarlanes (2013) study of SRLs in Canada found that, although very few SRLs experienced case
management, those who did were far more satisfied.
QPILCH (sub. 58) said that case management practices are largely focused on complex and commercial
cases, and could be modified to better assist SRLs. It suggested a supervised case list complemented
by a practice direction that would allow courts some flexibility for SRLs in litigation against represented
parties. A number of courts and tribunals already have practice directions that deal with SRLs.
...
Assisting those who deal with SRLs
Information and training for those in the civil justice system who work with SRLs can help shift attitudes
on the legitimacy of self representation. The judges role is particularly important the SRLs position of
disadvantage can be ameliorated by the trial judges duty to ensure a fair trial.
Training judges, court staff and lawyers
The Senate Legal and Constitutional Affairs References Committee (2009) recommended training for
judicial and court officers on assisting SRLs. Faulks (2013) suggested that such training should be part
of the orientation of new judges, and should address ethical issues in assisting SRLs as well as skills on
managing them in the court room . . .
It has also been proposed that lawyers should receive training on how best to deal with SRLs. Faulks
(2013) suggested that it should be a requirement for admission to practise, so that lawyers are aware of
their obligations when an SRL is the opposing party. The New South Wales Bar Association educates its
members on SRLs with its Guide to Barristers on Dealing with Self Represented Litigants (sub. 34) . . .
Clearer guidelines for those who work with SRLs
Clearer guidance on when, where and how to assist SRLs can increase the capacity of the civil justice
system to accommodate self representation. Currently, when it comes to SRLs, judges, court staff and
lawyers are in a bind:

judges need to remain (and be seen to remain) impartial and unbiased, while also providing SRLs
some level of assistance so as to ensure a fair trial

court staff must only offer procedural advice, without overstepping into the realm of legal advice

lawyers must serve the interests of their client while satisfying their duties to assist the court and
adhere to professional ethical obligations.
64
For judges, the degree and nature of assistance required varies on a case by case basis, with much of
the guidance found in case law. QPILCH said:
The nature of assistance to be provided by the court to a self
represented litigant depends on the litigant, the nature of the case, and
the litigants intelligence and understanding of the case. (sub. 58, p. 23,
citing case law)
The AIJA (2001) said that each court should have an SRL management plan to ensure that SRLs are dealt
with in an appropriate and systematic manner. It has drafted suggested guidelines on how to conduct
litigation involving SRLs. The guidelines provide a moderately active role for the judge, emphasising
the need for neutrality and cover issues such as testing evidence, putting hypotheses to experts,
questioning witnesses, identifying contradictions and inconsistencies in witness evidence, defining
matters in issue at an early stage, and advising SRLs of their procedural and evidential rights (Webb
2007).
Some jurisdictions provide tailored guidance for judges on how to work with SRLs. For example:

decisions of the Family Court set out guidelines for trial judges in that court

in Queensland, while the Equal Treatment Benchbook (Supreme Court of Queensland Library
2005) provides a detailed set of guidelines, it leaves judges with a great deal of discretion
(QPILCH, sub. 58)

New South Wales and Western Australia also have bench books that provide judicial officers
with guidance on dealing with SRLs (Judicial Commission of NSW 2006; WA DAG 2009).
There are also guidelines for lawyers and barristers on how to deal with SRLs. For example, QPILCH and
the Queensland Law Society have published guidelines (QPILCH and Queensland Law Society 2013), as
has the New South Wales Bar Association (sub. 34).
...
Providing information to SRLs
Courts and tribunals provide a variety of information to support effective self representation. SRLs can
access general guides and how to brochures on law and procedure in both print and electronic form.
Courts and tribunals sometimes develop these in consultation with stakeholders such as community
legal centres (CLCs).
The information provided by the Federal Court on its website was singled out for praise by QPILCH,
which said that it is:
very easy to navigate, as information is well presented with many
helpful links and the website doesnt over burden the user with content.
Rather, content is categorised clearly under one of six main headings (all
using plain English) allowing the user to select the most relevant. (sub.
58, p. 13)
Information needs to be constantly reviewed to reflect the changing circumstances of litigation and
the needs of SRLs. The Family Court of Australia (2003) acknowledged that providing information is an
ongoing process, and that relevant, comprehensive and comprehensible information at appropriate
times during proceedings is better than simply handing out a kit at the time of hearing. QPILCH (sub.
58) suggested a need to translate more information into other languages.
Providing general information to facilitate self help assumes a degree of capability on the part of the
SRL. Some suggest that information alone is not effective and needs to be accompanied by advice (AIJA
2001; QPILCH, sub. 58). The American Bar Association (ABA) said:
65
Many, if not most, litigants need more than the procedural

assistance offered by these resources. They need to know more
than which forms to use, how to docket their cases and what
time to appear in court. They need assistance with decision
making and judgment. They need to know their options,
possible outcomes and the strategies to pursue their objectives.
In some cases, pro se litigants need advocates for some portion
of their matter. These services can only come from lawyers.
(QPILCH 2010, p. 2, quoting an ABA source)
The Senate Legal and Constitutional References Committee also cautioned against overreliance on
information (alone) as a means to assist SRLs:
undue reliance on legal information services is ill conceived
without ongoing evaluation of the extent to which they actually
assist SRLs in resolving their matters. Such evaluation must focus
on the extent to which they contribute to resolution of the
legal problem and not merely the users satisfaction with those
services. (2004, p. 198)
Some sources of information are more personalised and tailored for example, the Supreme Court
of Victorias Self Represented Litigants Coordinator. Participants advised that people prefer this type
of specific advice about their matter rather than general information. Canada is moving to introduce
triage desks in courts, with frontline staff providing litigants with information about where to take their
case (Rassel 2014).
While clearer guidelines can assist courts to provide more tailored and useful advice, there are limits to
the assistance they can provide. Also, despite the simplification of legal processes, situations may arise
where SRLs find it extremely difficult to undertake part of a legal proceeding on their own -- in these
situations, retaining a lawyer may still be of great benefit (Beg and Sossin 2012).
Directly assisting SRLs
Direct assistance moves away from the self help spirit of providing general information and
expecting SRLs to join the dots. It allows for more tailored advice that is specific to peoples needs and
circumstances, and assists people who may be less able to self help. Hunter, Giddings and Chrzanowski
(2003) noted that interactive services such as legal advice sessions, telephone or in person advice,
assistance with documents and letters, and duty lawyers, were the services most frequently used by
SRLs.
As discussed above, courts are encumbered by restrictions on providing legal advice, which limits the
direct assistance they can offer. Woolf (1995) suggested a more open approach, recommending that
court staff should be able to advise on remedies, the procedure to pursue those remedies, and the
precise manner in which court forms should be completed. Some have also raised the need for court
staff to be given qualified immunity so they can more freely provide assistance (Supreme Court of
Queensland 2008; Woolf 1995) . . .
Duty lawyer schemes
Duty lawyers provide free legal assistance to SRLs attending court, generally within or connected to the
court building itself. Court staff are the prime referral source. Duty lawyer services are largely delivered
via partnerships between LACs and courts, sometimes with the involvement of other agencies (box
14.5).
The private legal profession also coordinates a number of pro bono duty lawyer schemes. For example,
the Victorian Bars Duty Barrister Scheme commenced in July 2008, with duty barristers rostered to
66
appear in the Melbourne Magistrates Court on a daily basis, the Dandenong Magistrates Court on
Monday and Wednesday each week, and on an ad hoc basis in other courts (Victorian Bar nd). In
October 2013, a pilot scheme was introduced in the Court of Appeal.
A number of tribunals also host duty lawyer schemes. For example, Legal Aid NSW operates a duty
lawyer service at the AAT.
There is limited evidence on whether duty lawyers help to resolve self represented matters effectively
and efficiently. An evaluation of the Dandenong Family Court Support Program undertaken in 1999
2000 (Family Court of Australia 2003) found that:

assisted cases are resolved more quickly and with fewer court appearances

SRLs generally were satisfied with the legal advice given; very satisfied with the assistance
received in the preparation of documents; and found the program very helpful overall

the general opinion of judicial officers was that the program assists the court to function more
efficiently.
...
The expansion of duty lawyer schemes has often been recommended. The Senate Legal and
Constitutional References Committee (2004) considered that an expanded duty solicitor scheme would
benefit the justice system by assisting SRLs to better prepare their evidence and narrow the issues in
dispute. However, it also noted that lawyers who merely perform a role as a mouthpiece, consulted
only minutes before the matter is heard, would not adequately address problems raised by lack of legal
representation. The Committee recommended that:
the Commonwealth Government and the state/territory
governments provide funding to establish a comprehensive
duty solicitor scheme in all states and territories of Australia. The
scheme should offer, at the very least, a duty solicitor capacity
in courts of first instance (criminal, civil and family) and should
provide legal advice and representation on all guilty pleas,
not guilty pleas in appropriate matters, adjournments and bail
applications, and assistance for self represented litigants to
prepare their evidence and narrow the issues in dispute. (2004,
p. 201)
...
Most duty lawyer schemes are limited by the fact that they provide services on the day of court. QPILCH
pointed out that the Civil Justice Council (2011) said that earlier intervention had assisted SRLs in
England and Wales:
While duty lawyers can give valuable assistance to SRLs on their
trial or hearing day, there are serious limits to the amount of
value that duty lawyers can really add to a case. In civil litigation,
the pre trial steps, the pleadings, discovery, are absolutely
critical. The day of trial is often too late to amend a document.
[QPILCHs SRSs] model of discrete task assistance throughout
the proceedings addresses that gap in duty lawyer and other
legal assistance schemes. (sub. 58, p. 26)
Macfarlane also found that:
While many SRLs appreciated the assistance they received
from duty counsel or other pro bono legal services, the study
also found dissatisfaction While this model works well for
some SRLs, other find a time limited opportunity to speak with
legal counsel leaves them more confused, and even panicked,
than before. (2013, p. 13)
67
Unbundled legal assistance

Another way of directly assisting SRLs is via unbundled legal services, where lawyers provide some
limited assistance and clients perform other tasks on their own. Unbundling is not new. Some argue
that it is just a new label for existing situations in which lawyers provide limited representation, such as
the role of duty lawyers (Beg and Sossin 2012). Yet unbundling is wider than the last minute assistance
duty lawyers typically provide at the court door. Legal aid providers and community groups already
provide unbundled assistance:
legal aid providers and pro bono groups recognized the
emergence of a new normal in terms of the prevalence of pro se
litigants decades ago. They began by making arrangements with
local courts -- arrangements of somewhat questionable status
under then existing ethical codes and civil procedure rules -- to
allow unbundled assistance in discrete litigation areas. (Greiner,
Pattanayak and Jonathan 2013, p. 911)
A market more generally supportive of unbundled legal services means more SRLs could afford private
lawyers to assist them with certain tasks, and may give more flexibility for government provided aid . .
. Greater prevalence of unbundled services could also address the concerns of some who feel that an
absence of legal advice, even for small matters, affects access to justice.
...
QPILCHs Self Representation Service (SRS)
A relatively recent initiative that provides unbundled assistance for SRLs is QPILCHs SRS (box 14.1). The
Service offers assistance at all stages of litigation including drafting and amending pleadings, advice
on disclosure and evidence, settlement negotiation and preparation for trial (Woodyatt, Thompson
and Pendlebury 2011). SRLs can obtain initial advice and explanations on court processes, access to
technology and, more recently, a free mediation service (CIJ 2013).
The basis of QPILCHs Self Representation Service is an acceptance
of the reality that not everyone can be represented by a lawyer on
their day in court. Funding of community legal centres and Legal
Aid is not adequate, and the generosity of private practitioners
working on a pro bono basis cannot fill the whole gap. (QPILCH
2013, p. 31)
SRLs who approach the Service are given an initial one hour long appointment and ongoing assistance
is provided to people who cannot afford private representation (Woodyatt, Thompson and Pendlebury
2011). The Service:

does not act as a partys representative or advocate

provides assistance in pre arranged appointments

offers appointments for 45 minutes to one hour in length (sub. 58).
This model of direct assistance provides a number of advantages.

It enables a deeper relationship with the client (over door of the court service). There is greater
potential to develop trust and to influence the client to take appropriate steps, and more time
to help them understand the litigation process. The benefits are two fold: the client is assisted
to better communicate their case; and the court receives the benefit of a better prepared
participant in the proceedings (Woodyatt, Thompson and Pendlebury 2011).

Independence from courts is seen as a benefit (Banks 2012).

It may assist in screening out frivolous, vexatious or unmeritorious cases and divert matters
away from courts where appropriate so that court resources can be devoted to those matters
that need to be adjudicated (AGD sub. 137).
68
The Service is offered Queensland wide at an annual cost of $300 000, funded by the Queensland
Government from a mixture of recurrent and non recurrent funding from the Legal Practitioner Interest
on Trust Accounts Fund. In 2012 13, the Service received 317 new applications for assistance and
conducted 559 appointments of at least one hours duration (QPILCH 2013).
The evidence suggests that the Service helps divert people from the court system, and is supported by
courts and clients alike (Banks 2012; box 14.6). For example:

In 2012 13 the Service discouraged just over 60 per cent SRLs advised from commencing or
continuing unmeritorious proceedings (QPILCH 2013; QPILCH, sub. 58).
In Queenslands trial divisions over 200810, 82 clients were diverted from the Supreme and
District Courts, saving an estimated $800 000. Of the 18 clients who went on to commence
proceedings self represented, 13 were counselled to pursue ADR, and eight continued to
receive assistance (Woodyatt, Thompson and Pendlebury 2011).
...
In July 2013, following successful pilots conducted by QPILCH, former Commonwealth Attorney
General Dreyfus announced $4 million funding over four years to enable a national rollout of the service
to SRLs in the Federal Court and Federal Circuit Court for social security, discrimination, consumer law,
judicial review, bankruptcy and employment law matters (CIJ 2013).
A further consideration for governments that fund this model is eligibility criteria. Interactions
with eligibility for legal aid and other forms of legal assistance need to be assessed to ensure that
government funded discrete task assistance is targeted to those who cannot afford private advice or
who do not qualify for other forms of legal assistance.
There may be opportunities in exploring alternative funding arrangements while leveraging the
advantages of QPILCHs model. For example, JusticeNet SA, an independent not for profit organisation,
operates a similar service in SAs Supreme Court. The recently commenced 12 month pilot is staffed
by pro bono lawyers, and project partners include Flinders University, private law firms and litigation
funder IMF (Australia) Limited (JusticeNet SA nd).
The Centre for Innovative Justice (CIJ) (2013) suggested a publicly funded model subsidised through
fee paying clients. It cited the Salvos Legal model, where litigants with means to pay for an unbundled
service support work to assist other SRLs. Given that the SRS has recently been expanded on a national
basis, the CIJ suggested that a pilot of the fee subsidisation model could be adopted at one site:
legal aid commissions have, at various times, accepted a level
of fee or contribution from some clients for a limited range of
services or, as mentioned above, taken out a caveat over a home.
It is feasible, then, for legal aid commissions to investigate the
development of a fee for service model on a wider basis in
which clients with moderate means, who would otherwise
be ineligible under Legal Aid guidelines, can elect to pay for
representation by a legal aid lawyer, or a private lawyer who
conducts legal aid work, on the basis of the relevant statutory
scale. (2013, p. 35)
The Commission considers that there would be value in user contributions for unbundled services for
SRLs who can afford it. This would create better incentives than subsidising unbundled services free of
charge, and would also align with the practices of LACs. It could also offset costs to taxpayers so that
funding could be used to assist more litigants.
...
69
Extract from Macfarlane, The National Self-Representation Litigants Project:

Identifying and Meeting the Needs of Self-Represented Litigants (Final Report)
(May 2013)
http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf
Page 65
The Court Guides Assessment project
This project was conducted by Cynthia Eagan, an information technology specialist residing in Windsor,
Ontario who works in the Detroit Public Library system. Cynthia contacted the Project after reading
a local media article about the study in July 2012 and graciously offered her expertise and assistance
on a voluntary basis. After a series of discussions, we decided that she could utilize her considerable
experience with reviewing the accessibility of information as an information technology specialist to
assist us in evaluating a selection of (on-line) procedural guides provided by the courts.
Together Cynthia and the Principal Investigator developed a template of questions that she would
apply to a Court Guide from each provincial ministry. The questions used for Cynthias evaluation were:
1. Does the material use accessible and easily understood language?
2. Does the material avoid technical and legal jargon?
3. Is the use of language and terms consistent throughout the guide?
4. Do there seem to be any important unanswered questions?
5. Is there a reference point for further questions?
6. What is the materials reading level? [i.e., where does it lie on the Flesch-Kincaird reading scale? Is it
properly accessible by all LIPs?]
7. What is the experience of navigating amongst URLs cited in order to complete the form?
Extracts from page 113 127

Part 5:
1
Preliminary Recommendations
Court Forms
Study Findings
While on-line court forms appear to offer the prospect of enhanced access to justice, many forms are
complex and difficult to complete . . . The most common complaints invlude difficulty knowing which
form(s) to use; apparently inconsistent information from court staff/judges; difficulty with the language
used on forms; and the consequences of mistakes invluding adjournments and more waster time
and stress. These widespread difficulties result in frustration for SRLs and additional burdens on court
personnel, registry staff and judges.
...
1(a)
70
Best practice standards are needed that recognize the nature and scale of SRL problems with
comprehending and completing court forms. Best practice standards should reflect systemic
problems . . . and include: reducing the multiplicity of forms; simplifying language used on forms
which is sometimes at a very high . . . reading level and frequently includes legal terminology
that SRLs do not understand; ensure that information (and vocabulary) is consistent. Where
forms are provided on-line, these should also follow the best practice standards adopted for online resources. . .
1(b)
It is not helpful for SRLs who cannot afford to pay for legal counsel to be constantly faced with
admonition on each court form (and sometimes on each page of each form) that they should
retain legal counsel. While this advice is important, there may be more sensitive and effective
ways to bring it to the attention of SRLs.
1(c)
Complementary court guides for court forms and procedures should adopt the same standards.
Where guides are provided on-line, these should also follow the best practice standards adopted
for on-line resources . . .
1(d)
Individuals (laypersons from a range of educational backgrounds) who have acted as SRLs
should be included in planning and reviewing materials and formats in order to develop and to
achieve best practice standards.
1(e)
The consequence of improperly completed forms is often severe for SRLs including delays in
hearings and their access to a decision. A system for reviewing court forms and documentation
prior to submission would save a great deal of judicial and administrative time and ensure that
when SRLs take time away from their employment and other responsibilities to attend court,
they are not adjourned because of deficiencies with their paperwork. Providing a form checker
to SRLs would require some resources but would probably be more cost-efficient than allowing
unchecked paperwork to go forward.
On-line Resources
Study Findings
. . . New initiatives in programming and support for SRLs in both Canada and the United States are
largely based on the premise that access to the internet can promote access to justice for SRLs.
While many of these initiatives are in relatively early stages of development, this study suggests there
are significant limitations and deficiencies to this material. SRLs who anticipated that the proliferation
of on-line resources would enable them to represent themselves successfully became disillusioned and
disappointed once they began to try to work with what is presently available on-line. In particular,, they
identified the following weaknesses: an emphasis on substantive legal information and an absence
of information on practical tasks like filing or serving, advice on negotiation or a strategy for talking to
the other side, presentation techniques, or even legal procedure; often directed them to other sites
(sometimes with broken links) with no means of differentiating which is the most legitimate. On-line
resources often required some level of understanding and knowledge in order to be able to make best
use of them.
The study data shows that no matter how complete, comprehensive and user-friendly . . . on-line
resources are insufficient to meet SRL needs to face-to-face orientation, education and other support.
Enhanced on-line technologies can be an important component of SRL programming . . . but cannot
provide a complete service.
71
2(a)
Continued development of on-line materials for SRLs (by courts and other service providers)
needs to take into account the considerable difficulties faced by many sRLs in navigating
and utilizing existing resources. In order to address these difficulties, best practice standards
should be developed to include: eliminating legal jargon, ensuring consistency, enhancing the
procedural know how aspect of on-line resources (presently focused primarily on substance),
consolidating information as much as possible to avoid duplication and navigation among
multiple databases, maintaining active links, and ensuring an appropriate reading level to
enable accessibility for SRLs with a range of levels of education.
2(b)
Individuals (from a range of educational backgrounds) who have acted as SRLs should be
included in planning and reviewing materials, formats and the development of best practice
standards.
2(c)
Questions and answers (including, for example, both a decision-tree style to direct users to the
correct procedures/forms and FAQs) are essential to assisting SRLs. Development of FAQs . . . for
websites is another obvious way in which those who have had their own SRL experience could
assist in the development of better resources for others.
2(d)
Websites could play a large role in directing SRLs to the appropriate resources available in their
community (mediation services, legal advice and legal information services).
2(e)
There is the potential for greater interactivity in on-line platforms, as well as links to personal
support via chat and phone. This would enhance the accessibility of on-line material and while
not equal to face-to-face contact could help to personalize the experience and convey the
sense that this material is fashioned for SRLs, rather than treating them as intruders into the
world of legal rules of procedures.
2(f )
There is a similar potential for SRLs to support and even mentor one another using on-line
platforms. . .
2(g)
Technical support and maintenance (eg maintaining live links, updating) for on-line resources is
also lacking and requires investment and enhancement.
3.
Access to Legal Information
Study Findings:
It is clear that many SRLs are eager to access further and better sources of legal information . . . SRLs in
this study were often seeking guidance rather than direction. . .
The most common source of legal information for SRLs are court staff, primarily those working at the
registry counters . . .
The distinction between legal information/legal advice which lies at the hear of the job descriptions
of staff working on the court counters and in information services is consistently complained about
by both SRLs and staff, as at best unclear and at worst practically unworkable. The present situation
places an unfair burden on court staff who are required to make constant determinations of how much
information they can provide to frustrated and even angry SRLs. This leads to inconsistent applications
and creates a barrier between SRLs and certain basic information that may be construed as legal advice.
72
Court and agency staff providing legal information to SRLs described an almost identical set of
frustrations and challenges to the SRL sample from their own perspective. They also accurately
identified the primary frustrations and challenges of the SRLs. Court and agency staff are working under
enormous pressure dealing with the growing SRL population and constantly changing court forms and
procedures. These are very stressful jobs, for which they are poorly trained and remunerated.
Preliminary recommendations:
3(b)
The conventional distinction between legal information and legal advice requires urgent
re-examination. It should be possible to achieve the assumed objective constraining the
unauthorised practice of law in a more consumer-friendly and feasible way. In addition it
may be important to revisit exactly what this constraint should mean in the new context of
widespread representation without agents (for example discussing court procedures or
predicting what a judge would say?). Court staff need more and clearer guidelines to help them
to determine, consistently and fairly, what they may and may not provide as information and in
response to SRL questions.
3(c)
Court staff whether working on the counter, as court clerks, or in general or legal information
services require basic training that prepares them to deal with members of the public on a
regular basis, including dealing with distressed and emotional people.
3(d) Regular training updates whether on court forms or procedural changes should be built into
staff development budgets, to avoid staff being faced with forms and questions with which they
are unfamiliar/cannot answer. This type of substantive and procedural updating can be offered
on-line using a suitable web-based learning platform.
3(e)
Court staff should have access to support services . . . offering counselling and stress
management programs.
3(f )
Each courthouse should examine its present security systems (both inside the courtrooms
and also at the counters) to ensure that staff can feel secure in the event of a disruptive person
causing a disturbance.
4.
Other support & resources for SRLs
Study findings:
. . . Improving the experience for SRLs by developing low cost support services for them has the
potential for improving the efficiency and enhancing the morale of the entire justice system.
SRLs particularly identified the need for orientation and education (aside from legal training) to enable
them to better anticipate and plan for what is involved in self-representation. . . . it is clear that many
SRLs are looking for different forms for educational workshops to prepare them for the SRL experience.
In particular, they are asking for practical tools and skills that they are can apply.
SRLs also described a need for one-on-one assistance in the form of coaching (eg document review,
answering questions) which support them to handle their own case but also provide checks and
moral support. For many SRLs who wish to remain in control of their own case, coaching would be an
important resource.
A significant number of SRLs say that they were never offered mediation, and/or do not know what it
73
is. This is a clear gap that needs to be urgently addressed (for example in both educational workshops
and better publicity). Some SRLs were nervous about participating in mediation, especially where there
was a lawyer representing the other side. Some SRLs who wished to try to resolve their case expressed
frustration that the Bench would not exercise greater pressure on a recalcitrant opposing side to come
to mediation.
At present many SRLs bring friends and/or family members with them to the courthouse for moral
support, especially on appearance days. This is a reflection of the need expressed by many SRL
respondents for some types of protection against what many experience as a lack of compassion
and kindness in the system, especially from some judges. However there is a great deal of confusion
and inconsistency surrounding the role of friends or supporters of SRLs, as well as the potential for
an unrepresented person to bring a McKenzie friend into the courtroom. This lack of clarity and wide
exercise of discretion by some judges is creating resentment and confusion.
Finally, may SRLs do not have access to the types of office facilities that they require in order to
represent themselves including printing services, photocopying facilities and even computers.
Some services are presently provided by counter staff (informally) or overburdened court-based
programming.
4(a) Educational workshops
If educational workshops are to be attractive to SRLs they should focus on offering practical skills and
information, offered by instructors who can provide skills-based focus, with opportunity for interactivity
and asking questions, in group sizes that permit this.
...
An SRL orientation workshop should be offered in every courthouse (perhaps less frequently for smaller
courthouses) for all individuals filing without representation . . . An orientation workshop should be
framed less as a legal information seminar and more as an orientation to what lies ahead, and might
be best offered by non-lawyers . . . SRLS need to be better informed about the many challenges
they will face, including the amount of time required to complete the necessary preparation, the
potential impact on their work commitments, the emotional toll of self-representation, the potential
impact on social relationships, and even mental health consequences, At the same time (and this is a
difficult balance) it is very important that SRL orientation is not designed to discourage or deter selfrepresentation but rather to be clear and concrete about its challenges.
Another critical area of SRL education presently lacking is how to progress ones case towards an
acceptable negotiated outcome. SRLs receive little to no information about how to resolve their case
and how to talk to the other side about a possible settlement (which may be especially intimidating
if the other side is represented by a lawyer.) A workshop or workshops could prepare SRLs to thinking
about settlement and how to make effective use of available settlement processes . . . Where a court
offers mediation services, this program should consider offering an orientation workshop that offers
practical skills and tips to SRLs.
SRL education should be the responsibility of the justice ministries and ideally promoted and offered
in courthouses. Programming could be provided by outside specialists with input and assistance of
court staff. In developing programs and workshops, those who have had the experience of being a SRL
should be consulted.
74
4(b) Coaching
Rather than focusing on legal issues and procedures, coaching could be offered by specialists in (e.g.)
communication, negotiation, and presentation skills (all areas that SRLs described as important but
often lacking from their experience and expertise). In particular one-to-one coaching for settlement/
preparation for mediation/strategic assessment of resolution options would be extremely valuable . . .
4(c)
Mediation services
It is critical to ensure that local mediation services are clearly signposted both in the courthouse and on
the court website, with a toll free number widely posted in the community,
Mediation services should consider offering initial orientation and training specifically designed for SRLs
SRLS who have had good experiences in mediation should be invited to provide testimonials to other
SRLs who may be nervous about the idea of using mediation.
Where one side is interested in mediation, the Bench should consider using their persuasive powers to
encourage the other side to seriously consider this. At a minimum judges should enquire whether SRLs
have considered using mediation.
4(d) Office services
Office services available for use by SRLs should be consolidated in a central [location] in each
courthouse. Such services would have to be operated at cost, but [it is] clear that the convenience of
such a facility in the courthouse would be significant. This would also relieve pressure on court staff and
staff at court-based programs who are currently bearing the brunt of such demands.
4(e) Mentoring and friends of SRLS
There is a clear need for a buddy/mentoring system to support SRLs in their emotional as well as their
substantive and procedural journey. Each courthouse should develop a clear and consistent protocol
for the role of SRL friends (that is, informal supporters rather than McKenzie Friends . . .) that sets out
expectations and responsibilities for appropriate access and behaviour . . . A similar protocol should be
established in each courthouse for the use of McKenzie Friends to avoid confusion and inconsistency.
Each courthouse should also explore the possibility of developing a formal buddy/mentoring scheme
utilizing volunteers . . . for SRLs. . . .
4(f) Opening hours
Courts should consider some extension of opening hours in order to accommodate the growing
number of SRLs who have to take time away from their employment in order to file documents and
appear in court.
...
5.
The delivery of legal services to SRLs
Study Findings
This study shows clearly (and consistently with other recent studies) that the primary reason for selfrepresentation is financial . . . SRLs are not sating that they do no want lawyers to help them but that
75
the way in which lawyers are currently offering their services does not fit within their budgets. Some
are also saying that they prefer to have more control over the progression of their case and resist the
traditional assumption of professional control by their lawyer.
...
Respondents frequently questioned the limitations placed on their assistance by para-legals, especially
in relation to family matters.
...
Finally, many SRLs sought some type of unbundled legal services . . .; for example, assistance with
document review, writing a letter, or appearing in court. Relatively few were successful in accessing
legal services on this basis despite a sustained effort, This was perplexing to many respondents, who
could not afford to pay a traditional retainer and envisaged that they could undertake some parts of the
necessary work themselves, with assistance.
...
Preliminary recommendations
5(a)
The summary advice model
. . . we need to:
(i) Re-evaluate the types of advice that must be provided by lawyers, and the
potential for other important and needed information and assistance to be
offered by para-legals . . .
5(b) Para-legals
Policymakers and professional regulators should commit to a re-evaluation of the historical reasons for
the restrictions of para-legal services . . . in the light of data in this and other studies on SRL needs. This
evaluation should consider what rights-protections require the intervention of a qualified lawyer and
how to identify and prioritize those cases in a public legal services model. Such an evaluation should
consult SRLs as well as lawyers, court staff and other stakeholders.
This evaluation . . . should also consider private para-lgal services. Many of the needs described by
SRLs in this study could be met by para-legals at a much more affordable rate than lawyers. Such an
evaluation should include urgent reconsideration of the types of assistance that can be lawfully offered
by (licensed) para-legals, especially in relation to family matters where the need appears to be greatest.
5(c) Unbundling
Demand from clients for models of legal service beyond the traditional retained arrangement is
becoming deafening . . .
5(d) Legal costs
. . . There is an urgent need to train lawyers to provide more complete and transparent information
about costs to their clients and before they present them with a bill. . .
...
76
5(f)
Code of Conduct
The widespread complaints of both SRLs and lawyers about the uncertainties and tensions where a SRL
faces off against legal counsel will not be dealt with simply by developing more rules but that would
be a good place to start. It is important to revisit the Professional Code of Conduct for lawyers . . . on
the question of the conduct of lawyers facing a SRL. The Code could provide clear guidance to lawyers
and should also entrench a commitment to respectful behaviour by counsel towards SRLs. This does
not negate the responsibility on the aprt of SRLs to adhere to appropriate and respectful standards
of behaviour in court and in dealings with counsel (as well as judges and other court staff ) but the
framework of a Professional Code is an important step in these discussions.
5(g) Legal education
Prospective lawyers need to be exposed to the realities of the SRL phenomenon. The law schools
should urgently consider developing courses that as well as providing up-to-date information about
the influx of SRLs into family and civil courts, also take on the challenge of teaching law students skills
that are important for dealing with a SRL on the other side. . . There may also be a role for law school(s)
to take on some of the orientation for SRLs described above at 4(b).
6.
The judicial role
Study findings:
The influx of SRLs into the family and civil courts has dramatically altered the judicial role. Judges,
especially in family courts, now finding themselves dealing with SRLs as often as with lawyers
representing clients. This is a huge sea change that some members of the judiciary are clearly adjusting
to better than others, The study data is replete with SRL descriptions of negative experiences with
judges, some of which suggest basic incivility and rudeness. There are also some examples of judicial
interventions such as providing advice regarding court procedure, coaching on presentation, and
progess towards settlement, which attract positive comments from SRLs. Other studies show that
judges are concerned about showing favour towards SRLs and find themselves in a difficult position
when one side is represented by counsel, and the other is not.
Most SRLs saw numerous judges during the progress of their case, and many complained that this
created inconsistencies and required them to re-establish their credibility with each appearance. . . .
Judicial education
6(a)
Further judicial training to support judges in working with SRLs in a regular basis is urgently
needed. This training should include effective communication skills, facilitation skills and stress
reduction strategies.
6(b)
Judicial education should be developed with reference to the perspective of SRLs as well as legal
actors. Training should be based on dealing with ordinary/majority SRLs. . . It is important that
such training is not framed from a siege mentality but rather considers the needs of the ordinary
SRL.
6(c)
Additional training to enable the identification and management of vexatious and disruptive
SRLs should also be provided.
77
Judicial appointments
6(d)
The demands of dealing with SRLs, and the relative skills and willingness of the candidate in this
respect, should be considered factors in criteria for judicial appointments, and especially to the
Family Bench.
Judicial procedures
6(e)
A Code of Conduct for judicial management of SRLs should establish appropriate norms of
judicial practice. Such a Code should be based on common problems and difficulties faced on
both sides (judges and SRLs; it could also consult court clerks). This is a project that could be
taken on by judicial educators and developed through judicial training sessions . . .
In the absence of a formal Code, the study data suggests the following recommendations where
one side is represented by counsel, and the other is not:
6(e)(i) A judge might consider opening the hearing with a short speech from the Bench
welcoming the parties and setting out his or her expectations for the conduct and
procedure of the hearing (including explaining and establishing his or her authority
over the process in the courtroom). This might include an giving an opportunity to
the SRL to ask a question/clear up any misapprehensions about procedure at the
outset. Such an opening would need to be time-limited, but with careful planning
could be delivered in 5 8 minutes.
6(e)(ii) A judge should give serious consideration to allowing the SRL to bring a friend and/
or McKenzie Friend into the courtroom with them . . .
6(e)(iii) A judge should ensure that the SRL understands when s/he is to be asked to speak
and should take care not to give the impression that the bench is only interested in
what counsel has to say.
6(e)(iv) A judge should ensure that any forthcoming consent order drafted by counsel is
sent to the SRL for review before being submitted to the court.
6(f) Single judge case management

Progress towards maximising single judge case management (especially for family matters) should be
seriously considered in every courthouse. While this has immediate resource implications, single judge
case management may save time and money in the long-term and has ben shown to greatly enhance
litigant satisfaction.
6(g) SRL courts
There is some limited experience with special SRL courts . . . and this is a development that may have
promise. Moreover, it allows judges who are willing to work with this population to develop this as a
judicial speciality. A related and promising innovation that deserves a full evaluation is the use of a First
Appearance Clerk . . . who readies family SRLs for their first court appearance.
78
(2) Other Recommendations

Extract from Dyson MR, Advances in Open Justice in England and Wales, (Hong
Kong) (18 October 2013)
29.
Finally, I want to turn to wider issues relating to the Internet. I want however to make a
preliminary point. Traditionally open justice has been conceived in terms of ready public
access and the ability to scrutinise what goes on in the courts. The justice which is to be open
is litigation and trial-centric. As anyone who has been involved in developments over the last
thirty years or so is aware justice goes beyond the courtroom. Professor Zander put the point, in
a related context, in this way,
The phrase Access to Justice has become a term of art signifying the arrangements made by the
state to ensure that the public at large and especially those who are indigent can obtain the benefits
available through the use of law and the legal system. 11
For access to justice read open justice. It goes beyond the courtroom. It is focused on securing
the benefits of the use of law, as well as the legal system, for all members of society. In this sense
open justice requires us to ensure that the law is genuinely accessible so that it can play its
properly normative role.
30.
If we widen out open justice in this way, it means we have to take a number of steps. We have
to, for instance, consider how we simplify the law, and at the very least ensure that new laws
are well-drafted and readily accessible. As Lord Woolf noted in his now rightly famous Access to
Justice reports, this rendered the court system and its procedures . . . (all) too often inaccessible and
incomprehensible to ordinary people. 12 Interestingly the government is currently looking at how
to simplify law, it having noted that
the digital age has made it easier for people to find the law of the land; but [that] once they have
found it, they may be baffled. The law is regarded by its users as intricate and intimidating. 13
Law in certain circumstances may have to be intricate. It should not seek to be intimidating
in the manner in which it is presented. It should always strive to be as simple, clear and
straightforward as possible. In particular it should be drafted with the user in mind, and in an
open society the real user is the public.

31.
32.
It is to be hoped that something positive comes of this latest initiative to simplify the law.
Irrespective of what it produces we need to take advantage of the benefits the Internet
provides for rendering law more accessible. In recent years through, for instance, the creation
of the national legislative database legislation.gov.uk on the Internet that has occurred. The
database provides access to statute law14. It is however fairly static, in that it simply consists of
the legislation and explanatory memoranda.
Given the growth in hypertext linking, and the benefits of what some call Web 2.0, we should
be taking a close look at how we can improve that database. It would not, for instance, seem to
take much to enable links to be embedded into the database between statutory provisions and
11
M. Zander, The State of Justice, Sweet & Maxwell (2000) at 6.
12
H. Woolf, Interim Report to the Lord Chancellor on the Civil Justice System in England & Wales, (HMSO) (1995) at 119.
13
When Law becomes too complex, research and analysis (Cabinet Office & Office of Parliamentary Counsel), foreword
<https://www.gov.uk/government/publications/when-laws-become-too-complex/when-laws-become-too-complex>
14 http://www.legislation.gov.uk
79
relevant judgments, which in turn could be readily accessible on Bailli; the charitable body that
is the British and Irish equivalent of HKLII the Hong Kong Legal Information Institute15. It would
equally seem to be, on the face of it and to someone who cannot and would not claim to be a
tech expert, relatively straightforward to then permit further links to be added to the statutory
provision and/or judgment, which would take you to commentary, explanatory notes provided
by Wikis or other open source sites. A start has already been made in this direction as Bailii has
entered into an agreement with the Official Law Reports to link their two services together. The
wider point though is that we have the material to provide a firm basis for readily accessible
public legal education via the Internet, which should be thinking creatively how to maximise its
utilisation.
33.
A legally literate society is one that could help citizens avoid disputes. Greater legal literacy
would inform individuals of their rights and obligations. It could consequently help to minimise
the incidence of legal disputes as it could help to built a culture were individuals abide by those
obligations. Where litigation becomes necessary or otherwise unavoidable greater legal literacy
could usefully help individuals assess to a greater degree than at present whether or not they
have a claim and whether it has merit. The latter is, of course, not an easy question, but if due to
increased austerity there is a continued decline in legal assistance for individuals legal literacy
will become all the more important. Again, the Internet could be harnessed here, and it is
something that I hope will be looked at closely in the near future.
34.
Let me explain where I think what I think we could usefully look at in this area. It is an idea that I
admit to borrowing from Roger Smith, the former director of Justice who, as far as I understand
it, first suggested the idea last year. He suggested that we use the Internet to create a legal
version of NHS Direct A Legal Direct. This would, as he explained it, be an Internet-based legal
diagnostic service. It could operate on a number of levels.16
35.
First, it could provide advice on the nature of a variety of substantive legal issues. It could
provide clear, straightforward guides outlining court procedure and how to present cases in
court. Secondly, it could provide interactive advice, either over the phone or over the Internet.
Such advice could help an individual consider their dispute in the relevant legal framework. It
could help an individual consider the merits of their claim.
36.
Thirdly, it could provide online access to all the relevant court forms and where, necessary,
assistance in filling them out. Assistance could be in the form of embedded web-links to simple
guidance on each section of the forms. (In saying this I am sure that the properly web-savvy
would be able to come up with far more innovative ways in which such assistance could be
given.) Such an innovation could also prove a spur to a thorough redesign of our court forms,
which I regret to say were described in a recent review, commissioned by the Civil Justice
Council and carried by Advicenow by an expert asked to review them as the worst set of public
documents Ive ever seen. The report goes on to note than one particular form had, in the words of
an advice worker become impossible to complete for the litigant in person - and for us. 17 In a world
where there will be more litigants-in-person such a situation cannot continue. The Civil Justice
Council is an advisory body, which as Master of the Rolls I chair. It is responsible for keeping
the civil justice system under review and making recommendations to ensure, amongst other
things, that it remains fair and accessible. I return to it in a moment.
15 http://www.hklii.hk/eng/
16
Smith, After the Act What future for Legal Aid (Annual Tom Sargant Memorial Lecture 2012) at 13
<http://www.justice.org.uk/data/files/resources/332/After-the-Act-what-future-for-legal-aid.pdf>.
17
See http://www.lawforlife.org.uk/ple-news/good-information-saves-stress-and-money,10262,FP.html
80
37.
Fourthly, where necessary a Legal Direct could provide a basic means of asking specific
questions, both on substantive law, procedure and regarding court forms that could be
answered via email, via instant messaging or internet-based videolink. Access to this, and
basic advice on a Legal Direct website, is going to be particularly important not just due to
a reduction in the availability of free legal advice centres but also due to reductions in court
staff and the availability of counter services in court buildings across the country, which have
occurred as a consequence of the austere times we live in. Finally, it could then provide a
gateway to issuing or filing the court form, paying the issue fee or applying for a fee exemption.
A Legal Direct could be a cost-effective, to borrow the phrase, a one-stop-shop for litigants. A
small proportion of court fees could fund it.
38.
At the moment we have only taken small steps to harness the Internet into service to promote
open justice. We use it, as I mentioned earlier, as a means to communicate background
information about the judiciary, to provide judgments and judgment summaries. As such we
harness it to secure open justice in the traditional sense. We can I think utilise it to go wider than
that; to render justice truly open in the wider sense I have outlined here as well as in ways that
real technological experts can imagine. With that in mind it is my hope that in the near future
the Civil Justice Council will, with suitable experts, start to look further into the ideas I have only
outlined here and see if and more importantly how we can use technology to promote open
and accessible justice.
Extract from Sorabji, Tinkler v Elliott: Promptly setting aside a judgment given in a
partys absence (2013)32 CJQ (1) 9, 13
It is also important as it provides an illustration of how the court will have to approach litigation in
an environment where, as is presently assumed, more litigants will act in person. Sharp Js approach
to the facts surrounding Mr Elliotts failure to make the stay application for almost eighteen months
after the 15 March 2010 order was one which tipped appropriate sensitivity to a litigant-in-person into
inappropriate leniency. This approach is understandable given Sharp Js finding that Mr Elliott had a
reasonable prospect of succeeding at trial. It was however inappropriate for two fundamental reasons.
First, it undermined the public interest in finality of litigation by enabling a judgment reached in the
absence of one of the parties to be reopened after such a significant period of time, as well as after
permission to appeal from the decision had been refused as was the case here.
Secondly, it undermined a proper approach to equality of arms between the parties. It is not credible
to assume that a plea of ignorance or a lack of proper understanding on the part of a party who had
instructed lawyers would have garnered any sympathy from the court. On what basis then should
a litigant-in-person be granted a more lenient approach? If too lenient or in the words of Maurice
Kay VP excessively indulgent approach is taken to litigants-in-person the courts run the risk of
institutionalising an approach which places other litigants at a procedural disadvantage: it opens the
door to a two-tier approach to rule-compliance.
This is not to say though that the courts should not take steps to mitigate effectively problems such
as that which Mr Elliot relied on in the present case. Just as in Maltez v Lewis (The Times, 4 May 1999
(ChD)) the court can should use its case management powers, and require represented litigants in
the furtherance of their duty to further the overriding objective, to take steps to equalise procedural
imbalances such as the one which arose in the case. In this case Mr Elliott was not provided with a note
of hearing of 15 March 2010 immediately after the hearing. If he had he would have been aware of HHJ
Tetlows comment during the hearing that he could have applied to set aside the decision made in his
absence. He was not, and an opportunity was lost. In situations such as the present any order made in
the absence of a litigant-in-person could, for instance, be rendered conditional on the provision of a
81
detailed note of the hearing with the order, such note highlighting the possibility of challenging the
order under CPR 39.3(3) or by way of appeal under CPR 52.
What is clear however is that as the numbers of litigants-in-person increase the court will have to take
a more active, and creative, approach to ensuring that its case management powers are used to ensure
that such litigants are aware of the choices they have in the conduct of litigation. It will have to do
so to render equality of arms meaningful, and to give proper effect to the overriding objective more
widely. Equally what is also clear is that the Civil Procedure Rule Committee may well have to undertake
a review of the CPR to ensure that it contains suitable provision, through for instance a dedicated rule
which makes provision for specific modifications to the rules where one or more parties to proceedings
are litigants-in-person, to equalise appropriately any procedural imbalance or inequality of arms which
might exist in particular proceedings between represented and unrepresented litigants.
(3) Practical steps to assist LIPs

Extract from Handling Cases Involving Self-Represented Litigants: A benchguide
for Judicial Officers (Judicial Council of California Administrative Office of the
Courts) (January 2007), pp 9-1 - 9-9
http://www.courts.ca.gov/documents/benchguide_self_rep_litigants.pdf
I. Communication Challenges With Self-Represented Litigants

Under the time pressure and stress of heavy and intense calendars, judges must determine how they
can best perform their fact-finding and decision-making functions when the involved parties are
not legally trained or familiar with courtroom culture. Judges have to decide how to make sure that
parties who do not have attorneys as intermediaries nonetheless understand and comply with the
courts orders and rulings. How can a judge make sure that justice is not more difficult to attain for selfrepresented litigants than for those with counsel?
A judges communication skillssomething that everyone can improvewill help determine success
in this endeavor. A judges communication choices will influence not only the amount and quality
of the information successfully conveyed in the courtroom (both information given and information
received) but also the likelihood of compliance with court orders and, ultimately, both the actual and
perceived fairness of the court proceedings.
Good communication also involves being aware of those persons in the courtroom who are waiting
for their cases to be heard. Through teachable moments the bench officer can draw the audiences
attention to the cases being heard, increasing their comprehension of the process and the ability of
persons in the audience to work within the process when their own cases are called.
Verbal communication refers to the words used, either written or spoken. Nonverbal communication
is everything communicated except the words. It includes vocal elementshow something is said
as well as what is commonly called body language. Listening, of course, is another basic element of
communication, one that usually combines both verbal and nonverbal communication.
Communication between the judge and self-represented litigants will necessarily involve the content
of actual words spoken or written, how those words are conveyed, and listening or reading skills. Word
82
content can be general or specialized (e.g., legalese), formal or informal, and high- or low-gradelevel equivalent, and the context within which words are conveyed can increase or decrease the
likelihood of their comprehension. Nonverbal communication can be even more significant than verbal
communication, and listening may be the most used but least taught communication skill.
II. Word Content, Formality, and Overall Language Level

A. The Importance of Understandable Terms and Definitions
In all cases, especially those involving self-represented litigants, it is important to try to make sure that
the information and ideas conveyed are understood by listeners, whether those listeners have a law
degree or not. Consider the terms used. Obviously, judges must be able to use and understand legal
vocabulary, but they do not always have to use it. Using the specialized language of a profession can
be a good shortcut if everyone understands it, but it is not a good shortcut if the listener does not
understand it.
When there is no alternative to the use of a specific legal term and there is a possibility that the parties
may not understand it, it is helpful to briefly explain the term. It is not necessary to sound erudite in
order to sound professional and to have the record hold up on review. On the
contrary, adapting to the listener is a hallmark of an effective communicator in any field. And it is
essential in dealing with self represented litigants.
Most professionals are not aware of how specialized their language is. When professionals think back to
law school or to any time that they were introduced to a new area of law, some terms that might have
seemed incomprehensible at first are probably now second nature. Like most professionals, judges tend
to think in the terms of art of their profession, some to the point where they cannot translate legal
terms except by using more of them.
Here are a few commonly used terms and their possible nontechnical equivalents:
1. allegedclaimed
2.
appellanta person who asks a higher court to reverse (or change) the findings of a lower court
3.
bears a significant resemblance tois like
4.
in compliance withcomply, follow
5.
the courtthe judge
6.
defendantthe person who is accused or sued
7. effectuatecause
8.
entitlementhaving rights to particular benefits
9.
evidencewhat is used as proof to establish facts, including testimony from the parties,
testimony from witnesses, or exhibits (documents or other objects)
10.
exhibitdocuments or other objects produced in court as evidence (proof )
11.
hearsaythe report of another persons words; a statement, either oral or written, by a person
who is not in court as a witness
12.
jurisdictionthe right to decide a case, the official power to make legal decisions and
judgments about particular cases
13.
legal elementsthe components or factors that need to be proved legally
14.
litiganta person involved in a lawsuit
15.
make contact withsee, meet, talk to
16.
moving partythe person who asked the court to make a decision
17.
obtain reliefto receive a court award of damages or an order requiring the defendant to do or
not do something
18.
the partiesthe sides
83
19.
20.
21.
22.
23.
24.
25.
petitionerthe person who asked the court to make a decision

plaintiffthe person who brings a case against another in a court of law
the proceedingthe action taken in court, whats happening in court
prove the elementsdemonstrate the truth or the existence of the necessary components
provisions of lawlaw
pursuant tounder
respondentthe defendant in a lawsuit, someone who has to respond to or answer the claims
of a person who asked the court to make a ruling
26.
rules of evidencethe rules for what is considered evidence or proof in a court of law, and how
that evidence must be presented
27.
sufficient number ofenough
28.
under oathsworn to tell the truth
29. weightimportance
Many judges find it useful to think through common questions to ask them in a way to make it more
likely to get better information.
Does the matter stand submitted? - Do you have anything else to say before I make my ruling?
Did you cause to be filed? - Did you file?
Do you want a continuance? - Do you want to have this hearing at a later date?
B. Formal Versus Informal Speech
To communicate better with self-represented litigants, many judges find it helpful to use practices
common to informal spoken language even in the more formal environment of the court.
1.
2.
3.
4.
5.
6.
Less formal language includes the use of the following:

Contractionsits, not it is;
Shorter sentences;
First and second personI, we, and you, not third person (e.g., one);
Active voiceYou need to understand, not passive (It should be understood); and
Informal connectors to open a sentenceAnd, Now, Then, Because, not Additionally, At this
point in time, Subsequently, In light of the fact that.
C. Language Level as a Barrier, a Diagnostic Tool, and a Solution

Judges should be aware of the level, or grade equivalent of language, and adapt it so that it is
accessible to listeners, without being condescending. Most commonly used software programs have
measures for assessing the grade level of a document. Measures such as the Flesch-Kincaid Grade Level
Score, which is included as a tool in Word and WordPerfect, include the word length (how many letters),
sentence length (how many words), sentences per paragraph, and use of the passive voice. Using these
tools can be very helpful.
D. Value of Written Materials
Some information is best provided in written form. When information is complex or lengthy, a
handoutideally with oral summaries or a question-and-answer sessionreduces pressure on the
listeners and makes it more likely they will both receive and process the information. Some written
material is best provided before the court proceeding (e.g., by the clerk, through Web sites or self-help
centers), which will greatly increase the likelihood that both sides will be better prepared. By being in
writing, it also allows for multilingual translation and gives litigants the opportunity to obtain help to
understand the materials. Some information is important enough to be conveyed in both written and
spoken form.
84
E. Recognizing the Literacy Barrier

However, judges must always remember that as a practical matter, information given in written form is
inaccessible to many of the self-represented. It is estimated that over 2 million native English speakers in
California are functionally illiterate, which is defined as being unable to read, write, and communicate in
English at a level necessary to function on the job and in society. The Correctional Education Association
estimates that 65 percent of adult prisoners are functionally illiterate. In Judging for the 21st Century: A
Problem-Solving Approach, Justice Paul Bentley (Ontario Court of Justice, Ottawa, Canada) has written
that judges must learn to recognize and read the signs of low literacy.
People may try to hide literacy problems by:
Saying they cannot read a document because they forgot to bring reading glasses;
Claiming to have lost, discarded, forgotten to bring, or not to have had time to read documents;
Asking to take home forms to read later;
Claiming to have a hurt arm and are therefore unable to write;
Glancing quickly at a document and then changing the subject, or becoming traumatized,
quiet, or uncommunicative when faced with a document;
Hesitating when asked to read a document and/or reading it excessively slowly; or
Appearing to read a document very quickly, although they are unable to summarize its
contents.
Possible markers of low literacy include the following:
1. A person who has not completed high school or has difficulty speaking English;
2. A person who has filled in a form with the wrong information or has made many spelling and
grammatical errors;
3. A person who claims to go to legal aid every day, but states that he or she doesnt have time to
fill in the relevant forms;
4. A person who seems not to relate to or understand questions about particular times, dates,
and places;
5. A person whose writing and speaking styles dont match; or
6. A pre-sentence report that indicates that an individual left school at a young age or before
completing grade 10, or that chronicles a history of unemployment or refusal of job training,
promotion, or reassignment. Persons who have limited literacy skills may attempt to cope with
feelings of fear, embarrassment, or inadequacy by behaving in ways that can appear flippant,
dishonest, indifferent, uncooperative, belligerent, defensive, evasive, indecisive, frustrated, or
angry. These emotional markers of low literacy may appear on the surface to be markers of a
bad attitude.
F. Overcoming the Literacy Barrier
1. To address low literacy in the courtroom, judges can do the following:
2. Be aware of their own biases relating to low literacy remember low literacy does not equal
low intelligence.
3. Educate themselves about low literacy in their community and in the courtroom;
4. Make it easier for people to understand by
a. Slowing down,
b. Doing as much orally as possible,
c. Speaking clearly and repeating important information,
d. Supplementing oral information with a written note that the person can mull
over in private or have someone read later, and
e. Previewing or reading aloud documents in the courtroom;
5.
Keep literacy in mind when sentencing; consider literacy training as part of rehabilitation;
keep in mind that most rehabilitative programs (job skills training, anger management, substance
abuse, spousal abuse, etc.) are literacy based; or
85
a. Use plain language instead of legalese,

b. Use short sentences and clear language,
c. Use words consistently,
d. Use the active voice, and
e. Avoid strings of infinitives (authorize and empower).
III. Increasing Listener Comprehension

Various techniques have been shown to increase a listeners comprehension of verbal information.
A. Setting Ground Rules
It is far easier for people to follow the rules when they know what they are. For example, courtroom
protocol includes wearing appropriate clothing, standing when the judge enters the courtroom, not
interrupting, and so forth. These ground rules may be available in written form at different steps in the
process such as at the clerks office, self-help centers, or legal services offices. They can also be conveyed
by a court clerk, self-help center staff, or bailiff. Procedural examples include how to state objections
and how to present different types of evidence.
B. Providing a Mental Map
It is helpful to give court participants a mental map of whats aheadwhat will take place. After each
major stage, judges should let them know where they are in the process and what comes next. For
example, the following statement could be used: The first thing I need to find out is whether this court
has jurisdictionthat is, the courts power to decide this case. Then I need to find out whether the
financial situation of the parent who does not have custody has changed, and if it has, I need to decide
what change in monthly support would be appropriate. Some judges use visual aids to supplement
understanding such as [a] PowerPoint presentation . . .
C. Using Repetition
Given that this is often new information to self-represented litigants, it can be helpful to repeat
important information. As mentioned above, judges will want to consider having important information
in both written and spoken form. It is helpful if the same information is also conveyed to litigants at
all steps in the process so that the clerks, self-help center staff, and court are providing consistent
information to litigants.
D. Using Paraphrasing
It is often productive to ask court participants to paraphrase important information out loud in their
own words to check their understanding. This will also increase retention. This example combines
explanation and paraphrasing: You are required to sign a piece of paper promising the court to do
certain things. If you do not keep your promise, the consequences are . . . Are you clear what you need
to do? What is that?
E. Asking Questions to Clarify Comprehension
Frequently ask if court participants have questions, and PAUSEfor at least 5 seconds for fairly basic
questions and at least 810 seconds for more complex ones. Make sure that participants understand
that its okay to have questions.
1.
Count to yourself if necessary to make sure the pause is long enough to allow listeners to
process your question and formulate their own.
2.
Use nonverbal behaviors to show that you are open to questions. Include some of the following:
establish eye contact, pause, sit up straight or lean forward slightly, tilt your head a little to one
side, use a nonthreatening vocal tone, gesture with open hands.
86
3.
Watch the listeners nonverbal cues to see if he or she has questions but is hesitant to ask them.
This is especially important for people who speak English as a second language or others who
might be confused or intimidated by the surroundings and the process.
4.
Answer likely questions even if your listeners dont ask them, if you think the information is
important. A question people often have is . . .
Extract from A Guide to Bringing and Defending a Small Claim (Civil Justice
Council) (April 2013), page 27
Guidance notes preparation for a small claim hearing
1.
Ensure that you make a note of the date and time of your hearing as soon as you receive
a notice from the court telling you when your claim will be heard. Make sure you tell any
witnesses as soon as possible too.
2.
If you are the claimant please ensure that you pay the hearing fee by the date specified.
Failure to do so will lead to your claim being struck out.
3.
Even if you have already filed some items with the court prepare copies of all documents
upon which you intend to rely at court, including any witness statements. These should
then be bundled together, a page number inserted in the bottom right-hand corner
for each page and sent both to the court and your opponent at least 14 days before
the hearing. If you do not do this you will not be able to use them without the judges
permission.
4.
Consider settlement. If you wish to explore the possibility of agreement contact the Small
Claims Mediator or your opponent. Any negotiations are confidential and cannot be
referred to at the final hearing. If you do agree terms ensure that the court is notified and
that you have a clear agreement in writing. Provided the court is told about the settlement
seven days before the hearing your hearing fee will be refunded.
5.
If your witness is unable to attend their statement can be read out but it does not carry as
much weight as if they attended. If you have been given permission to rely upon expert
evidence, that expert is not usually expected to attend provided their statement has been
disclosed in good time.
6.
You may bring a relative or friend with you who, if you wish it, can conduct the case on
your behalf. Please ensure that you arrive in good time, the court will try to ensure that
you are not kept waiting. If you are unavoidably delayed please ring the court to tell them
otherwise the case may go ahead without you.
7.
If you wish to claim any expenses bring with you a note of how much you are claiming. If
you wish to claim for loss of earnings bring with you a letter from your employer.
8.
The hearing is relatively informal but you should call the judge Sir or Madam, keep calm
and not interrupt your opponent. The judge will ask most of the questions but come
prepared to answer them and make a note in advance of what questions you wish to ask
87
your opponent. It may be useful to bring pen and paper.

9.
The hearing can take place in your absence as long as you notify the court and your
opponent that you will not be attending at least seven days beforehand. However, it is
usually better if you can be present.
10.
Finally the court is concerned to ascertain the facts, apply the law and make a decision.
Please do your best at all times during the hearing to assist the judge in that task.
Extract from The Interim Applications Court of the Queens Bench Division of the
High Court - A Guide for Litigants in Person (Revised April 2013) (Judicial Office),
pages 16, 24 25
3. The way to present your documents

16. You will not be turned away or not listened to you if you are forced to present some or all of your
documentation in handwritten form unless what you provide is illegible and/or unintelligible. However,
you must understand that the judge will have many pages of documentation to read each day and
clearly typed and properly spaced material is always preferred. If you can present your documents in
this way you have a much better chance that the judge will have understood the point(s) that you
wish to make before the application is heard. If you have not been able to do this the Personal Support
Unit (PSU) at the RCJ (Room M104) may be able to help with a modest amount of office work in an
emergency depending on resources. (For more information about the PSU see section 8 below.)
17. A font-size of not less than 12 should be used, please and easy-to-read styles such as Times New
Roman or Arial should be adopted. The document should be double-spaced.
18. Try to keep your written material as short and concise as you can. The judge will not welcome a
large number of pages with a great deal of irrelevant material. If you are preparing a Skeleton Argument
concentrate on putting your strongest arguments as you see them in a short series of numbered or
sub-paragraphed propositions towards the beginning of the document and then, if you wish, develop
them in a little more detail later. However, do try to keep what you have to say brief and to the point.
The judge will, if necessary, ask questions to understand your argument more clearly.
19. If you are the applicant, you will have to prepare a paginated bundle10 for the court, for the
respondent and, of course, for yourself. This is to ensure that everyone in court has the same material
available. This is dealt with in section 4 below.
20. Although this guidance is addressed to you, the obligations are the same for represented parties
and you can be assured that the judge will expect the same approach from them.
...
88
Contrary Ltd v Andrea Blank
Claim Number HQ99X01234
Defendants Skeleton Argument

for hearing on Friday 23 October
1. My arguments are (i) that the order made on 16 October should be set aside because Contrary Ltd (Contrary)
did not disclose to the court everything that should have been disclosed;
(ii) even if it was right to make the order then, it should not be extended further because it is
unnecessary and unfair.
2. I was employed by Contrary until last Friday, 16 October. On Monday, Contrarys lawyers sent me
a copy of an order the court had made that day saying that I must not work for my new employers,
Obliging Ltd (Obliging). This was the first that I knew that Contrary objected to me working for
Obliging.
3. I was also sent an application notice saying that Contrary are applying to the Court on 23 October to
continue the order until a trial. I am extremely concerned about this and I ask the court not to grant the
application.
4. My reasons for objecting to the application are:
(a)

(b)

(c)

(d)

(e)

I was not given any notice of the original application and so I was unable to present my
case to the Court at that time.
Had I been able to do so, I would have been able to inform the Court that when I
resigned, I told my line manager, Mrs Jones, that I was going to work for Obliging and
she said that this was fine.
When Contrary made its application, they did not tell the Court about my conversation
with Mrs Jones.
I could also have said that I was only an analyst. I did not have any contact with
Contrarys clients and had no access to any information which would be useful to a
competitor like Obliging. I do not understand why Contrary should be able to stop me
working for a competitor for any period.
The effect of the Order is very serious: I rely upon my income to support my family and I
am unable to look after them even for a short time without having regular earnings.
5. I have prepared a witness statement which explains the relevant facts.

6. In these circumstances, I would ask that the order of 16 October is set aside and that Contrarys
application is refused so that I can start working again with Obliging as soon as the hearing is over.
Andrea Blank
89
Extract from Interim Applications in the Chancery Division: A Guide for Litigants in
Person (Judicial Office) (July 2013), page 10
Preparing a hearing bundle - quick checklist
Lodge this by 10.30am on the day before the hearing. Number the pages.
Section 1
Skeleton Argument or position statement (if you wish)
Application Notice
A draft of the order you seek (if you can).
Chronology of main events in the case
Section 2
Any Witness Statement(s) relied upon, and exhibits
Any Witness Statements in response, including exhibits
Section 3
Copies of reported legal cases you want to rely on (or in a separate bundle if there
are a number)
Useful leaflets/further information:
Thinking of going to court, leaflet 4: http://www.rcjadvice.org.uk/wp-content/
uploads/2012/12/leaflet4-51112.pdf
Thinking of going to court, leaflet 5: http://www.rcjadvice.org.uk/wp-content/
uploads/2012/12/leaflet5-51112.pdf
The Chancery Guide: www.justice.gov.uk/courts/rcj-rollsbuilding/chancery-division
90
Extract from A Handbook for Litigants in Person, (HHJ Bailey et al) (March 2013),
pages 23 25
Chapter 6
The Basic Structure of Litigation
A. A cause of action
B. Issues of law
C. Issues of fact
Headlines
(1) To bring a claim, the Claimant must have a cause of action recognised in law.
(2) If a Defendant wishes to challenge the Claimants claim, he must raise either
issues of fact or issues of law or both. Most cases involve only issues of fact.
(3) It is essential for you as a litigant to identify the issues of fact in your case so
that you can concentrate on what is really important in your case.
(4) The court will sometimes direct parties to prepare a list of issues. You should
welcome such a direction, because you will then see what your opponent
considers to be the issues, and, possibly, the judge may make helpful
observations about what appear to be or appear not to be issues in the case.
A. A cause of action
6.1 To bring proceedings in a civil court, the claimant must have a claim against the defendant that is
recognised as being enforceable in law. To be successful in the proceedings the claimant must have a
good cause of action against the defendant. The cause of action is the entire set of facts that gives rise
to an enforceable claim.
6.2 There are two elements here. First there must be a claim that is recognised as being enforceable
in law. English law recognises a wide variety of claims, but not everything which causes injury, loss or
annoyance to another will constitute a valid claim. The claimant must satisfy the court that his claim is
one which is proper to bring within the recognised principles of the law.
6.3 The second element is the factual basis of the claim. To take two examples. Where a person breaks
an agreement he has with another he may have to pay compensation (damages) to that other person
(the innocent party). Or where a person who is under a duty to act with due care fails to do so with the
result that another person suffers harm, a claim may be made by the victim of the harm. It is for the
claimant to establish all the essential facts that go to make up that valid claim.
B. Issues of law
6.4 Issue in this context means a matter on which the parties disagree. An issue of law is where the
parties to proceedings have a dispute as to any aspect of the law or its application in relation to their
proceedings. Many cases proceed without giving rise to issues of law. Where, for instance, the claimant
is a pedestrian who claims that he was crossing the road at a light-controlled junction when he was
hit by a car driven by the defendant through a red light, it is most unlikely that an issue of law will arise.
The legal claim will be in the tort of negligence, for the law recognises a duty on all drivers to exercise
reasonable care to avoid causing damage to anyone else who is using the road at the same time. If a
driver goes through a red light and injures a pedestrian who is crossing the road, there is little scope for
arguing the legal basis of the claim. The driver may defend the claim on a factual issue, eg the light was,
in fact, green so that he was crossing the junction perfectly reasonably when the pedestrian ran out in
front of him, but there will be no legal issue.
91
6.5 But the above is a simple example and the law behind any particular claim may not be so
straightforward. Before a claimant starts a claim, he needs to satisfy himself that he has a claim
recognised in law. A defendant is entitled to challenge that claim either on the basis that it is not a
proper claim in law or that it does not apply to the facts of the claim being brought. A defendant
challenging the legal basis of the claimants claim in either of these ways raises a legal issue as to the
validity of the claimants claim.
6.6 This can be a daunting prospect for some litigants in person. The law can be technical and can
sound even more technical than it is. Lawyers, in common with most other professionals, use shorthand
phrases that may take some understanding. But for the most part the law, in the sense of what makes
up a valid claim, is not difficult to understand. It is convenient to divide the law into specific areas giving
rise to valid claims, the most common being contract, tort, land law, and trusts. Anyone wishing to
research whether he has a valid claim will find that most text books will cover defined areas of the law,
for the law is too vast an area to be conveniently covered in one volume. Once the correct area of law
has been identified, it should be possible to identify the part of that area of the law which covers the
facts of any individual case.
6.7 Each valid legal claim may be divided into its elements. Probably the most common claim brought
in the courts is in the tort of negligence. This claim may be divided into three elements, namely:- (1)
a duty owed to the claimant by the defendant; (2) a breach of that duty by the defendant; and (3)
damage recoverable in law caused to the claimant by that breach. The claimant must establish each of
the three elements. The defendant may challenge any or all the elements. He may challenge the duty
alleged by the claimant and assert that the law does not recognise that a person in the defendants
position owes a duty to a person in the claimants position. This will, essentially, be an issue of law but
the facts on which the issue is decided may be important, so there may be an issue of mixed law and
fact. Whether or not a defendant has acted in breach of a duty he owes to the claimant will usually be
an issue of fact. But with the third element, that of damage, the law has restrictions on the scope of
damage that may be claimed in any particular circumstances. So issues of law may arise in connection
with damages.
6.8 It is not possible in this Handbook to cover the law. That has to be found in textbooks. Please see the
comments made in paragraph 1.19.
C. Issues of fact
6.9 An issue of fact, that is a dispute or disagreement as to the actual facts arising in a claim, is an easy
concept to understand. Issues of fact are the very stuff of courtroom dramas. They are the building
blocks of any case. What is very important for the litigant, however, is to have clearly in mind those
factual issues which are relevant to the determination of the case, and those that are not. A litigant who
spends time and effort disputing facts which are not relevant to the decisions which the judge has to
make can annoy everyone by wasting time. But, more importantly for him, the litigant who makes a
great song and dance about facts which are not relevant to the determination of the case may end up
by masking those facts which are helpful to his case.
6.10 Which facts are relevant and which are not will depend on the circumstances of the individual
case. The colour of the clothes worn by a claimant pedestrian in a road traffic accident case may
have no bearing at all on the defendants driving. But if the accident happened at night time and the
claimant was wearing very dark clothing, the colour of the claimants clothes may become extremely
important. Where the driver was planning to go after he had crossed the junction where the accident
happened is often quite irrelevant to an assessment of his driving. But it may become highly pertinent
if the driver was lost and paying more attention to his general surroundings and less attention to the
road ahead than he should have been. Or he may have been late for an appointment. The litigant has
to use his good sense as to what is and what is not relevant in his particular case. Furthermore the
92
litigant should always be ready to accept that, as a case proceeds, an issue of fact which seemed very
important to him before the trial may turn out to be of little importance, and vice versa.
6.11 It is always important to identify the essential issues of fact before the trial begins. That is the
purpose of pleadings (statements of case), see chapter 8. When the pleading stage of the claim is
completed, it should be possible to work through the pleadings and identify all essential issues of
fact. A good litigator will identify all the essential issues of fact shown on the pleadings so that he
can: (1) ensure that he discloses all documents that bear on those issues; (2) consider what witness or
documentary evidence he may produce at trial to support his side of the various issues; and (3) deal
with each issue thoroughly in his witness statements.
6.12 Judges regularly direct litigants to prepare and file a list of issues. See this as a helpful direction. It
will make you think about the issues you are raising. It will also enable you to learn what your opponent
considers to be the issues in the case. Because it is helpful to the parties and judge alike, a judge at a
Case Management Conference or other interim hearing may consider the list of issues with the parties
and possibly make observations which may help you add to or refine your list of issues. If the case
management judge in your case does not direct a list of issues, and you would prefer that he did, do not
hesitate to ask for such a direction.
Extract from CLIPS - Chancery Bar Litigant in Person Support Scheme18

On 4 December 2013, the Chancery Bar Association, in collaboration with the Bar Pro Bono Unit and
the RCJ Advice Bureau, launched the Chancery Bar Litigant in Person Support Scheme (CLIPS). CLIPS
has the support of the Chancellor and the Judges of the Chancery Division, and is also supported by
the Personal Support Unit and LawWorks. It aims to provide on the day advice and representation
for litigants in person in the Interim Applications Court. The scheme is intended to assist litigants in
presenting their cases to the court, while at the same time assisting the Interim Applications Judge to
serve the interests of justice. In this way, members of the Association can contribute to the Bars efforts
to ensure that access to justice is not hampered by an individuals financial means.
Members of the Association with post-pupillage Chancery experience are invited to volunteer to be on
duty for a day at a time. The RCJ Advice Bureau may in some cases make papers available to the barrister
the day before the hearing, but in most cases the volunteer will simply be available outside Court 10 in
the Rolls Building, between 10 and 11 am on the day of the hearing itself, and then on call in chambers
until 4.30 pm, in case a litigant requires assistance. The volunteer will provide such advice as is possible
in the immediate circumstances, and will be ready (if requested and if content it is professionally
appropriate) to appear for the litigant at that days hearing. The litigant may also receive non-legal
support (for example, from the RCJ Advice Bureau or the Personal Support Unit). Where ongoing
assistance is required, the volunteer will refer the litigant to the RCJ Advice Bureau: the volunteers own
commitment is limited to the day in question.
The Committee commends CLIPS to the Associations members: it is an excellent opportunity to use
our expertise to promote access to justice for all.
18
http://www.chba.org.uk/about-us/the-association/clips-chancery-bar-litigant-in-person-support-scheme. A similar scheme,

upon which this one is based, operates in Court 37 the QBD Interim Applications Court, where pro bono assistance is provided
by both solicitors and barristers.
93
PART 5
Tracking the growth and impact of LIPs and
the efficacy of reforms
94
Part 5: Tracking the growth and impact of LIPs and the efficacy of reforms
Introduction
Historically, there have been few detailed empirical studies of the justice systems operation. This is
equally true of the extent to which LIPs bring claims. There is an expectation that the number of LIPs
has recently and will continue to increase. What actual data there is in this regard is limited; anecdote
and reported experiences by lawyers, judges and advice and pro bono services bears this claim out
however.
Part 5 looks at Genns argument that we ought to properly record and study LIP numbers, and queries
who is responsible for doing so. Such studies are important for a number of reasons: to assess the
resource implications on the justice system; to scrutinise the impact of such reforms, both positive and
negative; and then to consider what reforms need to be taken to facilitate effective access to justice for
LIPs.
95
Tracking the growth and impact of LiPs and the efficacy of reforms
Extracts from Genn, Do-it-yourself law: access to justice and the challenge of selfrepresentation C.J.Q. 2013, 32(4), 411
As is the case with so many aspects of the administration of justice, the data collected by HMCTS and
MOJ [concerning LIPS] are ill-suited to answering some of the most basic research questions about the
functioning of the courts and tribunals system. This historic weakness means that debate proceeds too
often on the basis of anecdote, and that policy, formulated within the void of information black holes, is
rarely subjected to systematic evaluation. The consequence is that it is difficult to know when a policy
might have succeeded; and when it has failed, we are not in a position to learn from policy mistakes.
The growing phenomenon of LIPs appears to be following the traditional pattern. Despite repeated
media stories about the growth in LIPs, despite the concern expressed by the judiciary, and despite
the MOJs own pre-LASPO review of data sources and research on LIPs revealing a shocking absence
of reliable evidence, it seems that the only data currently being collected and published by HMCTS
relate to representation in family proceedings. Even this information is doubtful since the identification
of parties without representation is based on a single field on the courts management system
(FamilyMan) in which court staff record whether parties have legal representation or not. The MOJ itself
accepts that this is not the same as being a litigant in person.
Material combined from a number of sources suggests that there is already a substantial proportion
of unrepresented parties involved in family and civil court proceedings and the signs are that this
proportion is increasing. For example, statistics from the Personal Support Unit at the Royal Courts of
Justice show year on year increases in the number of LIPs receiving support in the RCJ. In 2012, there
was a 37 per cent increase over the previous year in the number of clients assisted nationally and in
London alone the PSU dealt with around 4,000 clients. The PSUs specialist family unit experienced a 35
per cent increase in the number of clients in first quarter of 2011 and in that year the Unit commented
that they were
supporting more and more men, many of whom report that they are struggling to keep up
maintenance payments, and more and more cases where both sides are without lawyers.
The PSU also provides services to an increasing number of clients at other courts and tribunals in
London.
The situation seems to be that we have already experienced some growth in the number of LIPs in
courts and tribunals and that the implementation of LASPO has led to escalating concern. This apparent
growth in LIPs seems to be consistent with developments around the common law world, although we
appear to be somewhat behind the curve. The United States, Canada, and Australia have been dealing
with the challenge of LIPs for some time, presumably because of constrained or non-availability of legal
aid for non-criminal matters, but jurisdictions such as Hong Kong and New Zealand are beginning to
face a similar situation.
...
Although English research on how LIPs cope with court and tribunal proceedings is rather limited,
one or two studies provide insights into the challenges for the litigant, their opponent, and the court.
A study of the outcome of appeals in tribunals in 1989 concluded that, controlling for other factors,
represented parties were significantly more likely to win their appeal than unrepresented parties. The
study concluded that experienced representatives understand the law and complex regulations, they
investigate cases, they collect evidence, and they advocate effectively on their clients behalf. Although
96
unrepresented parties may have a good understanding of their case and concerns, they are not always
able to distinguish which issues are legally relevant, which aspects of their factual situation are germane
to the legal issues, and what constitutes appropriate evidence. They may have trouble articulating their
case, and in maintaining any degree of objectivity. They may be overwhelmed by the procedural and
oral demands of the tribunal or courtroom and find it hard to understand the purpose of questions.
A later study of the experiences of white, black and minority ethnic tribunal applicants in 2006, found
marked differences in applicants ability to self-represent during proceedings. The study concluded that
the ability of some applicants to present their own case was so limited that an advocate is not merely
helpful, but is necessary to the requirements of procedural fairness.
...
Developing an evidence base
Valid and reliable data collection must be a central element in any comprehensive strategy for
transforming the way that the justice system accommodates unrepresented parties. This is crucial in
order better to understand both access to justice and abuse of process issues and to assess the efficacy
of any proposed solutions. Information of different types should be collected systematically and be
capable of linkage. We need consistent and practical methods of categorising LIPs. We need information
about demographic and other personal characteristics, about the type of case in which they were
involved and whether they were bringing or defending the action. We need information about the
court or tribunal in which the case was dealt with and the outcome of the case, including for example
interlocutory orders, civil restraint orders, and any subsequent appeals and outcomes.
Had this information been collected over the past decade we might now be able to quantify the
increase, if any, in the volume of LIPs, to describe the characteristics of LIPs in different proceedings, and
the extent to which lack of representation appears to be associated with increased length of hearings
or prejudice in outcome. We would also be able to give a more coherent account of the volume and
nature of persistent or vexatious litigation and to assess the impact of measures to curb abuse of court
process.
97
98
99
UCL Faculty of Laws

www. ucl.ac.uk/laws
Judicial Institute
www.ucl.ac.uk/laws/judicial-institute
Centre for Access to Justice
www.ucl.ac.uk/laws/accesstojustice
100

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Faculty of Laws

What can Courts do?

UCL FACULTY OF LAWS

THE UCL JUDICIAL INSTITUTE

THE UCL CENTRE FOR ACCESS TO JUSTICE

LITIGANTS IN PERSON: WHAT CAN COURTS DO?

How to deliver effective, fair court proceedings involving LIPs?

How best to manage persistent and vexatious litigants?

Introduction & Context

Developments in Family Justice regarding LIPs

Inquisitorial Proceedings in France

Building the capacity for justice system innnovation

Questions to the panel and general discussion

Biographical notes on the Panel

Professor Dame Hazel Genn DBE QC

Judge Antoine Garapon

Lord Hughes UK Supreme Court

Court of Appeal, Vice President Queens Bench Division

Part 1: Developing a more inquisitorial approach 15

Sorabji, Tinkler v Elliott: Promptly setting aside a judgement given in a

Part 1: Developing a more inquisitorial approach

Developing a more inquisitorial approach

Extract from Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041

(2) A new inquisitorial approach

(3) Inquisitoriality the developing case law

Extract from Re R (a child) [2014] EWCA Civ 597

Extract from C (a child) [2013] EWCA Civ 1412

[22] I am persuaded that the nature of the inquiry in which the

Extract from Re CJ v Cardiff City Council [2011] EWCA Civ 1590

Part 2: McKenzie Friends

Extract from Report: Fee-Charging McKenzie Friends (Legal Services Consumer

Automatic rights of audience should not be granted to McKenzie Friends.

External regulation of McKenzie Friends should not be introduced.

Fee-charging McKenzie Friends should form a recognised trade association.

A lawyer as a McKenzie friend?

(2) Present Practice in England and Wales and Scotland

When considering whether to circumscribe the right to assistance or refuse a MF permission to

Rights of audience and rights to conduct litigation

Legal Services Act 2007 s12 19 and Schedule 3.

Personal Support Unit & Citizens Advice Bureau

Scotland: Extract from Court of Session Rules

Part 3: Managing persistent and vexatious litigants

Managing persistent and vexatious litigants

67. Delay or denial of a hearing as a result of vexatious litigants consuming disproportionate

Part 4: LIPs: Challenges and Practical Solutions

LIPs: Challenges and Practical Solutions

Extract from Australian Productivity Commission, Access to Justice Arrangements

DRAFT RECOMMENDATION 14.2

Pages 423 433

How does self representation affect the justice system?

around professional people able to work efficiently in these

In a Nova Scotia study 87.5% of judges thought that self represented

Simplifying the law

Many, if not most, litigants need more than the procedural

Unbundled legal assistance

Extract from Macfarlane, The National Self-Representation Litigants Project:

Extracts from page 113 127

Access to Legal Information

Other support & resources for SRLs

The delivery of legal services to SRLs

The summary advice model

The judicial role

6(f) Single judge case management