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”.