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Junior lawyers will be aware that Pro Bono week has made its return this year, between 4th and 8th November. Pro bono is an invaluable service that we can use as lawyers, to assist those more disadvantaged or generally in need of free legal assistance. The sense of justice behind this, will be the reason that many of us turned our heads to Law some years ago.
For 2024, Pro Bono Week focuses on ‘the power of pro bono’. Specific issues arising from this are both ‘being barred from justice’ and ‘technology enhancing access to justice’.
Barred from Justice?
There is a significant shift towards more clients opting to represent as a Litigant in Person, at least where Civil law is concerned. I work in Family Law, and 39% of cases are now heard in the Family Court with no legal representation on either side (The Law Society - April to June 2022). This is largely due to the escalating costs of appointing legal representation, which have only increased since the cost of living crisis. It can be argued that these issues, in conjunction with drastic cuts in Legal Aid availability, are infringing upon people’s rights to access justice. This also places a significant burden on Magistrates and the Judiciary to remove emotional tensions, and to encourage parties more generally to reach agreements when they are especially wary of having no professional specifically ‘on their side’.
The predominant issues that can arise from a justice perspective include:
1. Expectations – clients will increasingly enter into litigation or proceedings with little knowledge of what they are entitled to, or awareness of whether they are fighting a ‘good case’. This can cause issues in respect of costs Orders where negotiation factors in, where litigants are not necessarily blanket protected by virtue of not having a lawyer. Tailoring expectations at an early stage can often lead to settlement, as after all, only one party need be unreasonably difficult to guarantee a string of excess Hearings that could otherwise be avoided.
2. Case management – non-compliance always becomes a more prominent issue in the absence of a legal representative. Without the Court spotlight on litigants, or a lack of understanding about what is required from them, directions to be complied with can fall exceptionally short of deadlines until the parties are back before the Court. Ultimately, the Court do not have the resources to manage interim queries and any issues are dealt with at the time of listing, or not at all. Parties who agree or accept directions, and then move on to the practicality of preparing and realising they do not know what to do, will often go silent as opposed to risking the filing of prejudicial or incorrect documents. Whilst there are an array of templates and guidance online, these are not contained in one specific place (a LIP Wikipedia if you will) and sometimes do not go to the heart of anything more case specific. This places a burden on the Court where practitioners used to assist to ensure that logistical issues are minimised. This is particularly hard when these may only surface once the parties begin to undertake the work. Often, the Court will record recitals of their own volition to confirm that certain aspects have been explained to the parties, to cover themselves. When solicitors take on cases partway through, it is not uncommon to see double the amount of listings than a represented case.
3. Timetabling – as a result of the issues above, litigation that could be resolved in several weeks can pour into several months or years, if there isn’t a mutual understanding or desire to engage with the Orders at hand. There aren’t legal representatives available to explain the importance of compliance, and the cost (or other) consequences that can follow. Too often, clients have come to us at the last hurdle simply asking us to ‘take stock’ and redirect them back to their original goals. It can be confusing for a practitioner reviewing a large file for the first time, let alone somebody without legal expertise. Cases can become lost in conflict, and the Court may be reticent to simply list a Decision Hearing and conclude once and for all without the requisite disclosure or without fully complied directions. If you end up with a case where each party refuses to engage until the other does, the Court may allow several opportunities for a reasonable outcome until they go so far as to make an Order either absent the parties or irrespective of the information.
4. Issues with Alternative Dispute Resolution – emotionally charged or aggrieved litigants who do not have a third party (or anybody neutral) to support them, can respond impulsively and against their best interests. Practitioners often serve usefully as that middle ground, providing an objective voice in their ear. Two litigants who are exceptionally distressed or emotionally involved, will rarely seek to settle on reasonable terms and correspondence can quickly become heated and/or abusive at the worst of times. Without neutrality, parties can easily find themselves spiralling into the Court remit, seeking recourse from anybody with legal experience who does not come with an hourly rate. These may have been cases suitable for mediation or private Hearings, if the parties did not have to speak directly with the risk of inflaming a whole case via the tone of an email. Fortunately, the Court are making progress with ADR – now far more likely to halt proceedings and compel attendance at these avenues if necessary. However, this is not until Court time is removed from other more litigious cases, creating a vacuum backlog.
Access to justice is significantly hindered by the lack of availability of pro bono services. This is not the only issue, but one in several that serves to prevent parties from retaining legal advice. Clients can often seek practitioners out when it’s too late, and out of sheer desperation which will increase their debts exponentially if work is required urgently. Alternatively, cases progressing too far under inadvisable circumstances, require time to be undone. This is not to say that every type of law could feasibly function under pro bono as it is understood, particularly in cases where there is ‘no winner’. The burden should not be down to practitioners only to extend their free services. This sentiment must coincide with governmental and social reform, to include a revisit of the Legal Aid system, to provide reassurance to practitioners and to narrow the demographic of parties who seek this out.
A starting point would be for more transparency on what practitioners do, and how we can assist. It is common for clients to have no idea what to expect, and what to be asked for, when a Court application is issued. It is a common misconception that ‘pressing the Court button’ is a step that means you can sit back, relax and let the Court make a judgment for you. There are often disclosure directions, witness statements, negotiations and indications that can be hard to comprehend without experience in the legal sphere. In the Family Court, there is an emphasis by way of additional paperwork to get parties to ‘work together’ but then where directions and timetabling apply, a significant amount of legal jargon in its place. There is no one set place to locate enough documentation to manage your own case. With the influx of Gatekeeping Hearings and listings that do not require attendance, parties may find themselves panicking at the radio silence. The insertion of links to set templates within Orders, particularly when received via post, does not guarantee a helping hand to those who are elderly or not au fait / in possession of technology. Clinics that operate to deal with generic advice and preparation of forms are a backbone for parties, and need to be economically safeguarded as well as recognised for the time that is being shelved off the existing Court burden.
Technology – enhancing Justice?
Whilst cost of living remains a pertinent issue, technology is rapidly developing and there is a thoughtful effort to make sure that the Court involve all parties, represented or not, in these changes. The obvious changes that I have noted over the past few years are:
1. Ability to attend Hearings remotely on a more frequent basis – removing financial barriers from those who may struggle to attend a specific Court centre. Whilst this is commonplace for parties where one resides abroad, this enables us to hone in on clients who may struggle simply with a train from the outskirts of London into the city centre. For some, this is an expense that could not be met without sacrificing other outgoings. This is particularly in areas where the most local Court could still be over an hour away.
2. Access to practitioners generally – whilst practitioners who are able to offer Pro Bono and Legal Aid is still limited, technology has assisted. I have a range of clients from Cardiff, to London, to Birmingham, to those residing internationally but with issues centric to the UK. Technology has enabled us to locate a variety of solicitors across the country and without the need for in-person consultations. There is no requirement to be bound by those who work on your high street (although there are still concerns about ‘legal deserts’ existing in the UK, particularly in Wales, and those who do not use the internet). There is no requirement on the geographical location of your representatives.
3. Dependence on forms – as a result of the litigation process going virtual for most types of law, the use of emails and forms within attachments is prominent. This is helpful in terms of timescales when postal delays can cause significant anxiety, or have the potential to turn a case ‘on its head’ for last minute Hearings. The use of electronic forms can make documents easier to translate, easier to discuss with a friend/family for assistance, and easier to complete and send back generally.
Technology is going to continue to evolve, hopefully to become more encompassing in terms of the clients in need of assistance. Technology alone is not sufficient to resolve the main issues facing access to justice - such as funding, regional, economic or cultural problems with literacy, or trust in practitioners. It is a benefit that primarily targets those fully able to represent themselves, and disregards those who would not know how to work virtually in any event. More emphasis needs to be placed on how we can adjust economically against a tidal surplus of unrepresented clients, and what we can do as practitioners to provide more certainty and keep matters out of Court. Understanding technology should not be a pre-requisite to self representation, and whilst this is the natural trajectory, we must be mindful that there will be several decades yet before the majority of clients grew up knowing how to utilise pro-formas and word processing.
Pro bono work is not a ‘be all, end all’ solution – it is one aspect in a wide circle of problems that must all work together. To launch pro bono completely and without limitations would cull businesses (particularly high street firms) and disincentivise practitioners from continuing. To remove pro bono would burden the justice system to the point of further collapse. To understand access to justice, we need to consider new processes and a concise system where unrepresented parties can have access to any generic information they seek. Where parties aren’t represented, the Court must consider the onus to set out expectations within an Order, so as not to sacrifice case management and other people who need to be heard. Directions must be plain and explicit, even amending standard wording where this would be appropriate. This means that a return application could be dealt with more robustly, if there is ample provision for the parties to have ‘gotten on’ with the requirements in the interim. The lack of access to justice currently has a ripple effect on everybody – leading to greater backlogs, more adjournments, less faith in the Court system and an ongoing negative stigma regarding private law practitioners.
We should all be incentivised to change the way we work, as this is not just a one time benefit. With a more round-table, holistic approach to how Litigants in Person can be assisted, there is a guarantee that access to justice would not only follow suit as a moral imperative, but to make the expectations upon us all a bit lighter.
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