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The real cost of litigants in person


We all know the stereotype of a litigant in person: they turn up at court with numerous carrier bags filled with copious quantities of irrelevant documents heavily annotated in green ink. The parties in Mole v Hunter [2014] EWHC 658 (QB), both litigants in person, did not conform to that stereotype. In the words of Tugendhat J they “presented their cases to me with care and restraint”. It is all the more notable, therefore, that the Judge decided to include in his judgment a powerful obiter section addressing the impact of litigants in person on the administration of justice.


Mole was a defamation case but the comments made by the Judge apply equally to personal injury. He said this:

Litigation between two litigants in person places great demands upon the court. ... [T]he 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.


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.


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.


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.


This is an important point, well made. Many of the recent reforms to civil litigation have been predicated on the assumption that a reduction in legal costs will not significantly affect the administration of justice. Lawyers will protest, so the reasoning goes, but that is because they are going to be earning less; it is a protest born of self-interest, whether they realise it or not. Under the new regime, its supporters maintain, lawyers will have to work for less money but the quality of their work will not diminish. If they choose not to work at all rather than work for less, then parties will be able to represent themselves; any disadvantage so incurred can be overcome by modifications to the procedure adopted.


The first proposition remains to be tested. I consider it very doubtful. The second is simply wrong. Of course there is an element of self-interest in lawyerly protests about reduced fees. No realistic person would contend otherwise. But when lawyers warn that more unrepresented litigants will mean poorer administration of justice they are not merely conjuring Cassandras with which to clothe the nakedness of their own greed. It is a warning born of experience; and that experience is that in most cases where parties represent themselves their cases take longer and cost more. The flippant would put it this way: if one thing costs more than a case conducted by lawyers it is a case not conducted by them.

Those costs may not be immediately obvious. They may not appear on any cost schedule. But as the judgment in Mole emphasises, that is not the whole picture. The costs of judicial and court resources are costs just as much as fees pays to lawyers, and it is likely to be a false economy indeed if the former are expended in a misguided attempt to reduce the latter.


A final comment from Tugendhat J: “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.” As with defamation, so with personal injury.

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