Introduction
Going to court to settle a dispute is a simple fact of reality for many people at some stage of their lives. The nature of living in a civilised society means that there will inevitably be differences of opinion that escalate into serious issues. The issue may arise, for example, out of a property dispute, a contract-based dispute, or a financial dispute. Most often the issues are family-related such as in a divorce or a testamentary issue between beneficiaries. Qualified lawyers are typically instructed to represent the interests of the parties involved during the court proceedings. However, a difficulty arises where one party has access to greater resources than the other, thus leading to inequality in the courtroom. In such cases, it may be stated that justice has not been properly achieved due to economic influences.
Often, one party, indeed sometimes both parties, (referred to as litigants) choose to advance their case in court without a lawyer and the reasons for this choice are many, some of which are discussed below. The right to self-determination is a natural right inherent to all people under the common law system and so it must be facilitated in the courts. However, significant disruption and challenges arise when you have one or both participants to a dispute who simply do not know the rules of how a dispute such as theirs is typically settled in court. In those circumstances, the judge must often slow the case down to a crawl in order to explain the procedural aspects of court to the litigants and, to a large extent, explain the law also.
Naturally this amounts to frustration and a drain on the judiciary’s time and resources, which in turn leads to delays in administering justice across the country. It also leads to civil dissatisfaction with the legal process and dissatisfaction with those involved also. As one of Montesquieu’s three arms of effective government, the judicial system must not be seen as a barrier to citizens, but rather as a level playing field where justice is distributed equally.
CourtAssist.ie has been established with two key goals in mind:
(a) to aid the courts in reaching efficient and expeditious determinations, and
(b) to assist self-representing litigants in preparing their court or tribunal documents.
These core principles are inter-linked and, combined, lead to increased public satisfaction with the judicial system and increased efficiency of operations; neither of which can be said to be a bad thing. From the outset it must be stated clearly that CourtAssist.ie does not offer legal advice in any form. CourtAssist.ie offers drafting assistance to lay litigants for the preparation of their own court or tribunal documents only and can also assist with collating evidence and preparing court booklets.
The following pages briefly discuss the rationale behind the formation of CourtAssist.ie and seeks to offer clarification for the need for this independent legal assistance service in Ireland.
Personal Preference or Pragmatism?
In a recent study of Litigants in Person (“LIPs” – self represented litigants), conducted in Northern Ireland(1), research found that some of main reasons for self-representation were the inability to afford legal representation, personal preference, pragmatism, distrust of the courts system, and negative previous experiences with legal professionals. Many of the research subjects commented that they had applied for publicly funded legal aid but did not qualify. The authors noted:
“Often, it appears there is a blend of ineligibility for legal funding and unaffordability of legal representation proportionate to disposable income. In other studies, some LIPs have reported that while cost considerations dominated their reasoning, they also took into account the value for money they felt they were getting for legal services.”(2)
One participant stated, “You’re caught in the middle where you don’t qualify for legal aid because you’re working, and you can’t afford to pay for it yourself because you’re not earning enough when you’re working.”(3) Another participant commented:
“I had legal representation that I paid for in January when we went through the consent order. And I feel that now I could have that ten thousand pound in my pocket … And I should have represented myself then, because all we did was sat down in the main hall downstairs, and talk, and agree, write it on paper, and sign it, and I could have done that myself. Well, that’s exactly what I did. I did that myself, and somebody just finished off a couple of extra paragraphs, and that was ten thousand pound gone."(4)
Notably, the authors of this study observed that some LIPs had felt voiceless during previous legal experiences where they were legally represented and felt that they did not have sufficient opportunity to communicate with the court via their lawyers and were denied the right to self-determination.
The above research is supported by Lord Justice Stephens, who noted:
“Outside of the small claims court, there are around five thousand individuals going through the courts each year without legal representation. The research focuses on private family law and bankruptcy where a significant number of personal litigants are to be found. The research shines an important light on an issue that has become increasingly significant to the daily work of the courts.”(5)
It is evident, therefore, that an impressive number of lay litigants are choosing to self-represent due to financial hurdles, personal preference, or because it is simply more pragmatic to do so in their particular circumstances.
The View from the Bench
The high numbers of LIPs and their lack of legal knowledge may pose a serious challenge to the effective and efficient administration of justice.(6) As noted by Assy, the typical answer from scholars to the question of lay litigants’ poor performance when self-representing is that:
“…the adversarial system bears all the responsibility for their poor performance. Instead of enabling litigants to obtain justice, so the argument goes, the highly structured forensic setting has become a source of confusion, hindrance, and frustration to the layperson. … [I]n most common law jurisdictions the ‘labyrinthine procedures coupled with complex legal language can render the system almost incomprehensible to anyone who is not versed in the law’.”(7)
In his 1995 interim report on access to justice, Lord Woolf commented:
“Only too often the litigant in person is regarded as a problem for judges and 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.”(8)
The right to self-representation is considered a natural expression of the right to access the courts which, beyond having roots in the common law system at least as far back as Magna Carta(9), is both a constitutional right (10) at common law and also falls under the right to a fair trial per Article 6 of the European Convention on Human Rights.(11)
In R v Leicester City Justices ex p Barrow (12) the courts held that the right to be heard in person is a universal right. Similarly, in R v Board of Visitors of HM Prison (13) the House of Lords were of the opinion that, in the context of a prisoner’s right to counsel before a disciplinary tribunal, the right to self-representation was a necessary part of natural justice, whereas legal representation was not.
Balancing Act
It should be noted that legal aid is granted based purely on State policy and is not an absolute right. Accessing justice through the courts comes in three ways: either an individual can afford legal representation, they are granted legal aid, or else they must be capable of representing themselves. While the option of self-representation can indeed reduce the financial costs of going to court where one is denied legal aid, it raises the question of whether a system centred around financial means can truly be said to deliver justice for the individual concerned.
The expression ‘equality of arms’ derives from Article 6 of the European Convention on Human Rights and proposes that each party has a fair opportunity to present their case under conditions that do not place one party at a significant disadvantage to the other. The elevated ability of one party to represent their case over their opposite number’s case based on their financial situation must surely equate to a barrier in accessing justice and acts as a hindrance to the promotion of legally safe decision making.
Furthermore, a significant issue may arise where a LIP is so closely attached to the matter at hand, that they inadvertently do themselves a disservice when advancing their own case. In Airey v. Ireland (14) the European Court of Human Rights held that the State’s obligations to provide legal aid were shaped by factors such as the case's complexity, the procedural challenges, and the emotional strain involved, which made it unlikely that the applicant could adequately present her case before the High Court. The sheer volume of workload involved in advancing one’s own case to the Superior Courts is prohibitive in itself, let alone the financial costs involved.
It is clear, therefore, that a balance needs to be struck between parties where it appears evident to the court that one party has access to significantly greater resources than the other(s). Whilst it may only go a short way towards addressing that imbalance, CourtAssist.ie hopes to act as an independent and impartial assistant to LIPs, giving them the necessary breathing space to focus on the case at hand rather than stressing over administrative tasks such as drafting their submissions. This in turn will allow the courts to better get on with the business of administering justice with fewer interruptions and costly delays.
In Conclusion
Increasing access to civil legal aid must be a priority for the Government of Ireland to ensure justice for LIPs and address the unfairness of financial barriers to legal representation. Whilst a healthy bank balance may enable a litigant to hire a top shelf lawyer, and you are encouraged to do so if you can afford to, a dearth of funds should certainly not prevent a person from accessing justice in the alternative. Make no mistake, a healthy legal system, just like any other system, requires high-quality competition to continuously grow and maintain a high standard. But David v Goliath is a fictional story and should not be taken as a suggestion that the underdog will come out on top simply because 'justice prevails'. Without some form of affordable legal assistance, the odds are always going to be stacked against the LIP which, inevitably, will lead to increased costs and increased risk of injustice.
CourtAssist.ie aims to provide that assistance at affordable rates and with compassion and understanding at the core of our business model. While we are unable to provide legal advice to our clients, and in no way do we assist with case strategy, we are fully committed to assisting you in drafting your court documents and helping you to present your claims, counterclaims and supporting evidence in a clear, logical and articulate manner. Our ultimate aim is to assist the court in delivering justice by ensuring your legal submissions contribute constructively to the efficiency of court proceedings rather than causing delays and increased court costs.
If you would like to discuss the options available to you, please get in touch and we will contact you shortly.
CourtAssist.ie
References:
1. Gráinne McKeever, Lucy Royal-Dawson, Eleanor Kirk and John McCord, Litigants in Person in Northern Ireland: Barriers to Legal Participation (Ulster University 2018).
2. Ibid, 83.
3. Ibid.
4. Ibid, 87.
5. Ibid, Lord Justice Stephens, ‘Foreword’ 1.
6. Rabeea Assy, Injustice in Person: The Right to Self-Representation (Oxford University Press 2015) 1.
7. Ibid, 13.
8. Lord Woolf, Access to Justice – Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (June 1995) 119.
9. Magna Carta, [1215] Ch 40, "To no one will we sell, to no one will we deny or delay right or justice."
10. See for example, Article 40.1: “All citizens shall, as human persons, be held equal before the law.”.
11. ECHR, Art. 6: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”.
12. R v Leicester City Justices ex p Barrow [1991] 2 QB 260, 284-5, [1991] 3 All ER 935, 942 (CA).
13. R v Board of Visitors of HM Prison [1988] AC 379, 391-5.
14. Airey v. Ireland [1979], Application No. 6289/73), European Court of Human Rights.
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