Bach Commission: The Right to Justice

Lord Judge Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Judge (CB)]

My Lords, the provisions of LASPO in relation to legal aid were not wise. In truth, as the Public Accounts Committee discovered in 2015, they were ill considered. I will make just a few observations, having listened to the debate thus far.

Underpinning the invaluable report by the noble Lord, Lord Bach, a former colleague of mine on the Midlands circuit—we practised together and did cases against each other—and underpinning every single contribution by all noble Lords who have spoken is this: there are litigants with a genuine claim which merits the attention of a court but who cannot afford to litigate it, and there are litigants with a serious defence in law to a claim brought against them, which they cannot afford to litigate. If they do not or cannot afford to go to court to enforce their rights or to protect themselves, their choices are very stark, and they do nothing. They are uncounted, unknown victims of miscarriages of justice. Nobody knows how many there are because they do not turn up to be counted.

Alternatively, and with great courage, they bring or defend their own cases as litigants in person. I want to touch on one aspect that, although it has been addressed by some of your Lordships, has not been fully addressed: the impact of litigants in person on the administration of justice throughout the country, particularly in the county courts, where district judges do invaluable, hard work dealing with the day-to-day concerns of the ordinary citizen. They have to deal with many cases, but the problem of litigants in person goes all the way up to the Court of Appeal, where Lord and Lady Justices of Appeal are considering applications for leave to appeal by litigants in person.

These judges have to deal with such cases. No judge can possibly hope to ascertain the facts presented to him by a litigant in person without having to delve through mounds of uncounted and unnumbered papers, sometimes in confused or non-date order. This is not through any want of effort—often they are presented to you in beautiful files—but for want of expertise. They are presented by the litigant in person in an emotionally charged situation. This man or woman is in a place where he or she does not wish to be, and is frightened by the processes, even if helped by organisations such as Citizens Advice or the personal support units there are in many courts. It is emotionally charged for that reason, and because he or she feels that an injustice has been done or that justice is required. Trying to help that litigant in person to do the best for his or her case leaves the judge in a very difficult position, because the judge has to avoid the danger that the litigant on the other side will think, “Why is the judge helping my opponent? Why is the judge helping the person bringing the claim against me?”. So the judge is faced with an exceptionally tricky and delicate course. He has to remain neutral and be perceived to be neutral. Sometimes there are litigants in person on both sides, with the same vast bundle of papers, only in a completely different order because there has been no organisation by lawyers beforehand to present the judge with the few papers, the few documents, which actually matter.

Then off the judge goes, trying to find out what the law is. This is too serious a subject for jest, but I must allow myself this. In the Garden of Eden, there was one law: “Don’t eat the fruit of that apple tree”. Then we had 10 commandments. We produce 12,000 pages of laws every year—every year. The judge has to try to find out which bits of the law matter, because no judge anywhere in the world knows all the law. He has a qualified lawyer on both sides. He can say, “Mr so and so, where do I go now?”. “Section 22 of the Landlord and Tenant Act”. “Mr so and so, where do I go then?”. “My Lord, it is in the Social Security Act”.

What are the consequences—because there is a consequence beyond that of the unknown victim? The consequence is this. Cases take much longer than they did, at every level of the court. You may say that that does not matter, but it is a very strange economy: the judges are working harder but getting through fewer cases. The consequence to the administration of justice is this: lists of cases are reduced. A judge who could do 25 cases in the county court every day can now do only 15. You see the concertina effect. Gradually, more and more delays are being built into the system.

It is not just about the man or woman with a good case—although they are the prime victims—it is about every other litigant who suffers in consequence of this unwise legislation.