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Saturday, 30 March 2013

Blowback: consequences from legal aid cuts

Recent events in Afghanistan and Iraq brought the intelligence communities' phrase 'blowback' to public consciousness.

At its most basic, it's about unintended consequences; often ones that the actor actual intended to avoid, and yet by their actions, brought about.

Recent legal aid cuts in Victoria might be a case in point.

The UK has also recently gone through a round of austerity cuts, purportedly in the attempt to save money.

A recent Court of Appeal judgment has eloquently demonstrated how such savings can be illusory and undermined as litigation is left to unrepresented parties without the aid of lawyers. (Shoutout to @The CBA for the tweet about this case.)

1. This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon that alleged procedural impropriety.

2. What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid: Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 per Sir Alan Ward.

The real answer lies in the government properly funding legal aid. We can only hope it won't take the court system grinding to a halt and miscarriages of justice before the government recognises that.

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