On 1st April 2013 the government withdrew legal aid for most family cases. The purported rationale behind this decision was to encourage people to use Alternative Dispute Resolution (ADR) such as mediation. This actual reason was to save money.
The problem is that where there are many cases in which ADR is appropriate, there are many cases in which it is not. It is also worth noting that even if you, as a client decide to attend mediation you will still need legal advice to understand your position and your options so that you can negotiate properly. You will ultimately need to instruct a solicitor to make sure that any agreement you do reach is as binding as possible. ADR in and of itself cannot remove the need for legal advice.
The reality is that the budgetary cuts to legal aid mean that many people will simply not be able to afford legal advice. This often means that the weaker financial party is disadvantaged from the start. Even if neither party can afford legal advice this does not provide a level playing field. If one party has a stronger personality than the other, or is a bit more financially savvy, their opponent could struggle to achieve a fair outcome.
Cases with a litigant in person are likely to take longer and be subject to delays, because with the best will in the world, the litigant in person is highly unlikely to have the level of legal knowledge and expertise needed to properly conduct a case. Although the rise in litigants in person comes from budget cuts, conversely such cases are usually more expensive.
Judges will help litigants in person as much as they can to try to ensure that all of the relevant facts are put before the Court. However, it is simply not realistic for the Judge to run the entire case from the bench.
Litigants in person may be able to have a MacKenzie Friend to assist them with moral and practical support in Court, but it is important to note that a MacKenzie Friend cannot conduct the case on your behalf.
Some barristers now offer direct access which will help some people but this is only appropriate in limited cases. Barristers remain prohibited from conducting litigation and therefore cannot properly run a case in the same way that a solicitor can.
Solicitors can provide legal advice to help you understand your rights and options. It is an extremely risky strategy to proceed without any legal advice at all. Some mistakes may simply not be salvageable. It is important to remember that a solicitor does not just offer legal advice but also an objective perspective, which can be invaluable when identifying the important aspects of the case, negotiating a settlement or preparing a case for trial. A solicitor can also offer an equality of bargaining power which will never be the same for a litigant in person.
We are extremely concerned by the withdrawal of legal aid and the inevitable effect this will have on access to justice. We have therefore decided to offer unbundled services as an option to clients. In essence, this means you will represent yourself but that you can instruct us to deal with very specific issues of your case where you need help. This might be to assist you in preparing documents for Court, preparing for trial or advising you about your case. If you would like more information about the unbundling services we offer please contact us on: 0208 342 7760 or email us at: firstname.lastname@example.org.