LITIGANTS IN PERSON
by Damien Cremean
Litigants in person are a growing phenomenon across all jurisdictions, at all levels, and in all sorts of cases. It is hard to know how this has come about. Litigants have always been able to present their own cases but them doing so has become far more frequent. The costs of legal representation have definitely contributed to this – which is unfortunate, if so. But governments and the appalling levels of legal aid funding surely are the main culprits.
Attitudes to litigants in person have also changed over the years – and it is possible this could be a contributing factor. The more the courts assist people who are running their own cases, the more that people will be encouraged to do so. Amongst other things, this will inevitably lead to delays in the completion of proceedings. It will also lead to the courts looking biased – helping the side without the lawyer but providing no assistance whatever to the legally represented side. And that will make people feel they are disadvantaged by having a lawyer represent them.
It is doubtful if a court would say this these days:
It is a pity that the appellant is not versed in the law. It is a pity that no-one helped him present his case at trial. But that is not a basis for allowing a party to make a new case on appeal with the benefit of the experience of the trial” (see Riboni v Tropeano  VSCA 99 at ).
More likely these days the court will be saying:
A trial judge should take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure at the Court as is reasonably practicable for the purposes of ensuring a fair trial” (see Ekermani v Harbour Radio Pty Ltd  NSWCA 54 at .
However, a comment of Applegarth J in Mbuzi v Hall  QSC 359 at  is worth quoting in this regard:
A court is entitled to extend some latitude to a self-represented litigant who is not familiar with the forms and procedure, providing in doing so injustice and prejudice is not occasioned to other parties, and also provided the court is able to achieve a just and expeditious resolution of the real issues of the proceeding at a minimum of expense.
Litigants in person can make it extremely difficult for the judge who is hearing a case – as may be seen from the opening remarks in the judgment of Sir Alan Ward in Wright v Michael Wright Supplies Ltd  EWCA Civ 234 at :
This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon the alleged procedural impropriety.
What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person…
Sir Alan went on to say (at ) that two particular issues were highlighted by that case:
- how far judges should have to micro-manage cases, “coaxing and cajoling the parties to focus on the issues that need to be resolved”; and
- how far it may be possible “to shift intransigent parties off the trial track onto the parallel track of mediation”.
The conduct of civil litigation in Australia is vitally affected in every way by the growing phenomenon of litigants in person. The legal profession must bear some responsibility for this – but so must governments, particularly in the meagre sums they allow for legal aid funding. They (normally Treasury officials doing economic modelling) think they are saving money by not spending money but, in reality, they are burdening an already over-burdened legal system. Imagine the uproar there would be if it was decided to cut health funding so that more and more people become “self-administered patients”. It is not fair on judges that they should have to spend time schooling people on how to run their cases. Not only is that wasteful but it gives an appearance of bias. And that strikes at the heart of our system of justice.
Governments, and the private legal profession, need to take the issue of self-represented litigants seriously. This is a problem that will not go away. It is irritating in the extreme to know that government funds probably exist to fix the problem almost overnight.
* The full citation for this comment is: (2013) 2 JCivLP 3 at 7.