The right to a fair trial can be in danger if individuals go to court without legal representation

The disadvantages faced by individuals who go to court without a lawyer can jeopardise their right to a fair trial. This is the finding of a two-year Nuffield Foundation study by Ulster University on ‘litigants in person’ in the civil and family courts in Northern Ireland, which examined the experiences of individuals who represented themselves in court.

There has been considerable concern over the rise in the number of litigants in person across the UK, although this research shows that the litigant in person population in Northern Ireland has remained fairly constant from 2012-2016, representing approximately 5.5% of the litigant population in civil and family courts (excluding Small Claims cases). The greater rise has been in England and Wales where drastic changes to Legal Aid have taken place, that have not been replicated in Northern Ireland. Beyond this difference, however, there are many similarities between the Northern Ireland legal system and other legal systems like England and Wales, where the research findings will apply equally.

Under Article 6 of the European Convention of Human Rights (now part of the law in the UK under the Human Rights Act 1998) individuals are entitled to a fair trial and this includes the right to participate effectively in court proceedings and the right to equality of arms.

The European Court of Human Rights has said that if a case is too complex or the litigant’s ability to self-represent is insufficient, the state is required to provide legal representation for them. Beyond these exceptional circumstances, however, Article 6 does not entitle – or require – litigants to have legal representation but the state is still required to ensure that the disadvantage faced by litigants in person does not amount to unlawful discrimination. The state is therefore required to take action to pre-empt a breach of Article 6.

There are different actions the state can take. As part of the research, a procedural advice clinic was established by the Northern Ireland Human Rights Commission, to test if this could improve litigants’ participation. Procedural advice is neutral advice or information that is intended to inform a person’s decision, think through their options and decide for themselves the best approach to their case. It is different from legal advice which is intended to influence or guide a litigant’s decision by looking at the merits of the case and setting out the pros and cons of different legal positions.

The research found that the clinic provided helpful support to litigants in person. Litigants themselves described the advantages of having someone knowledgeable and professional to talk to and who could check their understanding, help them to see their cases differently and manage their proceedings. They appreciated being taken seriously and listened to, often when they felt isolated and intimidated by the prospect of court, described by one litigant as providing “a wee bit of empathy and a bit of sympathy.”

There were also limitations to the clinic which the research defines as ‘too little’ or ‘too late’. ‘Too late’ meant that litigants in person felt they would have benefited from the advice much earlier in their proceedings, rather than part-way through their cases. ‘Too little’ meant that the remit of the clinic was too limited for some and was not enough to match the advantages of legal representation on the other side.

The two main recommendations from the research are that there is a need for cultural change to ‘normalise’ the presence of litigants in person in the court system and embed their perspective in reforms to the court process, and a need for information materials to support litigants, developed through user-focused design principles.

Significantly, the majority of the research recommendations do not require Ministerial action and movement towards delivery of the recommendations has already begun. At the conference launch for the research, the Department of Justice proposed the creation of a litigant in person reference group, which it would form part of along with litigants and other stakeholders. There was strong buy-in from litigants in person and lawyers, and work is now underway with Ulster University, the Northern Ireland Human Rights Commission and the Department of Justice to develop this proposal to help delivery the necessary reforms.

The research is available at www.ulster.ac.uk/litigantsinperson.

Post by Professor Gráinne McKeever

This is a guest slot to give a platform for new writers either as a one off, or a prelude to becoming part of the regular Slugger team.