Better late than never: MoJ finally publishes report on litigants in person

Ministry of Justice

MoJ: The report called for more public funding to help LiPs

The Ministry of Justice (MoJ) has finally published a report it commissioned on litigants in person (LiPs) – more than a year after it was submitted.

The report examined the experiences of LiPs in private law family cases before the legal aid cuts in April 2013, to assess their impact and help shape future policy.

A spokesman for the MoJ told Legal Futures last week that the report was “awaiting quality control” and there was no date set for its publication.

Submitted in September 2013, the research involved the work of six universities, led by Professor Liz Trinder at Exeter University.

It criticised the Legal Services Consumer Panel for calling for greater recognition for paid McKenzie Friends (MFs) and questioned whether their services were “of sufficient value to justify a charge”.

The Trinder report said the expansion of paid MFs was “raised as a concern by judges, lawyers and Cafcass officers”, and poor practice to the detriment of clients and the court process was “observed directly”.

The consumer panel research was criticised for relying too heavily on “data supplied by paid MFs themselves” in concluding that only a minority were to be avoided.

“The researchers suspect, however, that examples of poor practice are not rare. Certainly in this research, it was relatively easy to find actual observed examples of very poor practice.

“Further, in the interviews and focus groups the judges, lawyers and Cafcass officers were readily able to supply other examples from their own experience – indeed, this emerged as a matter of considerable concern to them.

“Much of the problematic behaviour demonstrated by paid MFs will occur out of sight of the court and therefore the courts will be unable to provide protection. Equally one cannot expect lay consumers to always know what they need to know or to be able to evaluate the advice they receive.”

The report went on: “Judges may look for whatever help and assistance they can get. However, the potential for McKenzie Friends to be ‘covert foes’ needs to be acknowledged and addressed.

“At the very least there is a need for a code of practice or revised practice guidance, and the question of whether a regulatory framework should be developed in response to the emerging McKenzie Friend market needs to be addressed.

“Overall, although the potential value of a supporter should not be discounted, it is doubtful whether formal MFs (particularly paid MFs) are clearly of sufficient value to justify a charge for their services.”

The report argued that training LiPs to become “quasi-lawyers” through document assembly systems, coaching and self-help centres was “only ever likely to be partially effective”, and “likely to be most helpful to the most able LIPs in less complex cases”.

On unbundling, researchers questioned whether this could provide an “adequate substitute” for full representation and in the study, “a number of LiPs who had had some legal advice came unstuck when they came to represent themselves in the hearing”.

In contrast, the report found that help from a barrister under the Bar’s public access scheme could provide “fairly extensive” assistance, but “very few” LiPs were aware of it.

Though it was not part of the research team’s brief to provide a “fully worked-up blueprint for change”, the Trinder report recommended greater availability of exceptional case legal aid funding in private law family cases and a mechanism to allow judges to recommend public funding in the interests of justice.

Researchers suggested that although “violent, aggressive and disruptive” LiPs were observed “relatively infrequently”, publicly funded legal assistance should also be available “to perform a protective function for the court”.


    Readers Comments

  • Lee says:

    It’s a bit like the growth in P2P lending. A market grows up where the established one cannot or will not engage with a significant but usually small and perhaps more risky segment of the market.

    As a remunerated MF, my ‘business’ totally relies on my competence… I am only as good as my last case, as I totally rely on word-of-mouth and recommendations.

    I may be seen as a ‘threat’ to some, but it is really unfair as almost all the cases I am asked to assist on are those that the Bar and solicitors would not open a file on as the likely costs will outweigh the benefit.

    All my ‘clients’ get the advantage of free initial consultation(s) and fixed fees thereafter. They know the risk/reward ratio but they at least have someone on their side who understands the language of litigation, some of the tactics employed and how to understand and can explain it to them in ‘their’ language what ‘it’ all means.

    Most of my cases settle before court dates and those that do end up in hearings, the LIPs at least feel less exposed than they would do if going it alone.

    I appreciate that the lack of regulation and independent competency assessment can result in poor practice and outcomes, but with all due respect that happens to professionals too…someone’s got to lose…

    My aim is always ‘win/win’ and outcomes-focused. It works.

    Clients are happy to have been helped, courts and judges are happy to have competent assistance and everyone else is sceptical or critical. I know who I need to please….

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