All posts by Joyti Henchie

About Joyti Henchie

Email: [email protected]
Tel: +44 (0) 203 871 0009
I purely specialise, and have a wealth of 23 years’ experience, in family law including: divorce and separation, financial settlements cohabitation, and child protection, to name but a few. I am an accredited member of the Law Society Family Law Advanced Scheme and Family law scheme and was member of the Children Panel for 13 years. I am also an accredited specialist with Resolution. I am a trained Collaborative Lawyer. I am ranked in the region’s ‘first tier’ of family lawyers in Chambers and Partners 2015 and was listed in 2014 as a ‘notable practitioner’. I was recently admitted to the exclusive Leading Lawyer Global 250 list.

More litigants in person a LASPO legacy

As virtually everyone in the legal profession will recall, warnings were sounded at every stage of the introduction of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. LASPO would, many lawyers argued, deny access to justice for many individuals who might have wished to pursue civil litigation of some sort.

A month ahead of implementation the following year, the Law Society summarised the changes in these terms: “On Monday 1 April 2013, the Legal Services Commission will be replaced by the Legal Aid Agency, and the cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will take effect. LASPO implements substantial cuts to civil legal aid. The details of what remains in scope can be found in the LASPO Schedule 1.”

The Law Society’s measured summary contrasted with the sense of outrage widely felt across the profession. For so many of us, access to justice is a basic tenet of the legal system and in effect to exclude people because they do not have the financial resources to pursue a case unaided seems in conflict with that, although that does not mean we can all work pro bono!

My own area of family law was among those affected by LASPO’s massive scaling back of legal aid. This was clearly bad news for many future clients and of course had implications for my firm’s human and financial resources, as it was usual for us to be handling several cases within the affected areas of family law. We very soon had to adapt ourselves to the new arrangements.

Family law legal aid guidelines

The newly created Legal Aid Agency was quick to provide guidelines, which included: One of the key changes introduced by LASPO is that legal aid for most children and finance matters in private family law cases will only be available where a client has specific evidence in relation to domestic violence or child protection. The evidence that is required in order for an application for legal aid to be made in these matters is prescribed in the Civil Legal Aid (Procedure) Regulations 2012 as amended. Regulation 33 deals with evidence relating to domestic violence and Regulation 34 with evidence relating to child protection.

This all amounted to much more than raising the bar as regards qualification for legal aid; it was more like asking us to participate in the pole vault with only occasional access to a pole. Like colleagues in other areas of my firm and across the profession, I was driven to wonder what the draconian cutbacks were expected to achieve. It was, in essence, all about the money.

A paper later presented to a Commons Select Committee inquiry explained the rationale thus: “In 2010 the incoming Government developed plans to cut public spending significantly. The Ministry of Justice (MoJ) was required to find budget cuts of around £2 billion from an overall budget of £9.8 billion. Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was intended substantially to reduce the civil legal aid budget by removing whole areas of law from scope and changing the financial eligibility criteria. The LASPO scheme was introduced alongside other policy changes including a reduction in the fees paid to providers.

“In the final Equality Impact Assessment accompanying the Bill the Ministry of Justice set out that its objectives for the proposed legislation were to: discourage unnecessary and adversarial litigation at public expense; target legal aid to those who need it most; make significant savings in the cost of the scheme; and deliver better overall value for money for the taxpayer.”

Cases fell by the wayside

Transitional arrangements provided for legal aid to continue in pre-LASPO cases that probably would not have qualified post-LASPO, but for the past three years or so we have been learning to live with the new legal aid regime. Regrettably, many sound cases across many areas of civil law must have fallen by the wayside due to the denial of legal aid since April 2013.

In my family law work, like many others no doubt, with the reduction in availability of legal aid we are seeing more litigants in person. This is an understandable reaction in situations where litigants do not have or are not willing to put up the funds needed to pursue a case through the courts. Their perception is that the DIY approach will save them money without detriment to the outcome. In a few cases they may be right.

As any legal professional knows, there is a raft of procedural issues involved in preparing and presenting a case to the court. A litigant in person invariably does not know what to do to prepare a case and there is every likelihood that they will fail to comply with court timetables and they may attend court unprepared and so jeopardise the effectiveness of the hearing.

The courts clearly have to treat litigants in person in a fair and reasonable way, so will often spend time in hearings explaining things to them. I totally accept that someone unable to finance legal representation should be permitted to represent themselves and to be assisted by the court as appropriate. After all, it is not fair if a father cannot see his child just because he cannot afford legal costs and cannot get help with funding. LASPO has left him with no choice.

Counterparty cost impact

Whilst supporting the right to self-representation, I have to note that this approach is not just potentially disadvantageous for the litigant in person but also for the opposing side.

Having a litigant in person on the other side can increase costs for a paying party and cause huge delays. Inept preparation, missing of court deadlines and poor presentation in court can all add to the time and costs of the case for the represented party.

Often the solicitor acting for a paying party will do things to keep matters on track even if there is no obligation on them. They have to lodge bundles with the court. Usually the onus is on the applicant but if the applicant is a litigant in person it falls to the respondent to do, involving more cost, and they also have to provide the litigant in person with a full copy. The solicitor may incur further costs repeatedly chasing when the litigant in person overshoots court timetables.

In my personal experience it is also likely that a litigant in person, in the absence of sound legal advice, is less likely to take a pragmatic approach and to compromise or agree. So, settlement is far less likely to be achieved at a relatively early stage of the proceedings. Prolonged, contentious cases are of course the most expensive for everyone involved; they can also be the most stressful and upsetting for the parties and for other family members.

All of this prompts the question of whether LASPO, beyond slashing expenditure on legal aid, was intended to lead to greater resort to self-representation or whether this has been an accidental consequence. If the former, I tend to think that the aim of reducing the number of cases reaching court by means of accessing alternative dispute resolution options also loomed large in the legislators’ minds.

What drove LASPO aid cuts

To determine the thought processes behind LASPO Schedule 1, it is helpful to return to the Select Committee inquiry submission. Among the factors said to have guided the Ministry of Justice’s decisions on changes to scope of legal aid, two stand out as particularly relevant here, as one relates to ‘the litigant’s ability to present their own case’ and the other to ‘the availability of other routes to resolution’.

To quote the submission: “The litigant’s ability to present their own case: considerations included the type of forum in which the proceedings are held, whether they are inquisitorial or adversarial, whether litigants bringing proceedings were likely to be from a predominantly physically or emotionally vulnerable group.

“The availability of other routes to resolution: in determining the priority for certain types of case, we considered whether people might be able to access other sources of advice to help resolve their problems, avoiding the need for court proceedings.”

From this I have to conclude that the expected consequences of withdrawal of legal aid, in addition to the inevitable result that some justifiable actions would never get off the ground, did indeed include a rise in the number of litigant in person cases and a rise in the role of mediation and alternative dispute resolution methods.

Mediation v. Self-representation

There is no doubt in my mind that, to the extent that the 2013 withdrawal of legal aid for many family law cases leads one or other party to seek a less costly alternative to professional legal representation in court, the better solution is likely to be mediation rather than self-representation.

I have already touched upon the multiple disadvantages of self-representation and colleagues across all areas of the profession need little introduction to the benefits of mediation in many cases. I can only speak for family law disputes, but avoiding the mounting costs of going to court when a similar outcome could be achieved in less formal, less adversarial surroundings is almost always preferable.

That is not to say that mediation is guaranteed to be an easy route to an amicable settlement. It does need to be effective, and to be effective both parties need to be committed to the process. With that and some goodwill on both sides, a resolution that both can accept as fairly arrived at (and thus unlikely to differ greatly from what they might expect at the end of a long court battle) is within grasp.