One of the problems that has resulted from the removal of
civil legal aid and the increase in the value of civil small claims where legal
costs are irrecoverable is that the number of litigants in person has grown
massively.
Some people faced with the challenge of preparing and presenting their case without legal support do remarkably well however unsurprisingly many others struggle to cope with often complicated processes and points of law. In the meantime hearings get longer and the system struggles to cope.
One approach increasingly apparent in Southend County Court is a direction for the matter to be dealt with on the basis of written submissions and documents rather than oral evidence. I do not criticise the courts for trying to streamline the system and increase the speed of justice but this does raise yet another risk to the quality of justice in this current cost cutting era.
I have recently been consulted by a party who was directed that his case would be dealt with in this way and had no understanding that he was fully entitled to object if he wished to do so. Evidence, to include expert evidence, was then lodged and a decision was then issued. It rejected his claim on the basis that the 2 experts disagreed and as it was for the Claimant to prove his case the claim was dismissed.
In my opinion the decision was a poor one. It is inevitable in a contested case where both sides rely on expert evidence that there will be disagreement but surely that does not mean that as a result the Claimant should lose. If so it makes a defence strategy on most claims reasonable straightforward! Of more concern the Judge gave no indication that he/she preferred the evidence of the Defendant expert. It was simply that there was disagreement.
The client tried to seek a hearing but this was rejected as he has “consented” to the matter being dealt with on paper. He didn’t want the cost and further aggravation of an appeal but felt badly let down by the system and did not realise that he had the right to object. The rules have previously indicated that parties must make a clear election to avoid a personal hearing and it raises some fundamental human rights issues.
The court has in more recent cases changed its order stressing the parties right to object to the order for a paper hearing however I would question whether the average litigant in person realises they are making this election. I also disagree that it is right to remove formal hearings and the ability to test evidence in person. If this is going to continue than I wonder if we need judges at all – I am sure that a software package could be developed enabling the parties to feed in all relevant information and receive a decision based on set criteria almost instantaneously.
Call me old fashioned but I believe that oral hearings are a key element of our long established system and we move away from them at our peril!
Some people faced with the challenge of preparing and presenting their case without legal support do remarkably well however unsurprisingly many others struggle to cope with often complicated processes and points of law. In the meantime hearings get longer and the system struggles to cope.
One approach increasingly apparent in Southend County Court is a direction for the matter to be dealt with on the basis of written submissions and documents rather than oral evidence. I do not criticise the courts for trying to streamline the system and increase the speed of justice but this does raise yet another risk to the quality of justice in this current cost cutting era.
I have recently been consulted by a party who was directed that his case would be dealt with in this way and had no understanding that he was fully entitled to object if he wished to do so. Evidence, to include expert evidence, was then lodged and a decision was then issued. It rejected his claim on the basis that the 2 experts disagreed and as it was for the Claimant to prove his case the claim was dismissed.
In my opinion the decision was a poor one. It is inevitable in a contested case where both sides rely on expert evidence that there will be disagreement but surely that does not mean that as a result the Claimant should lose. If so it makes a defence strategy on most claims reasonable straightforward! Of more concern the Judge gave no indication that he/she preferred the evidence of the Defendant expert. It was simply that there was disagreement.
The client tried to seek a hearing but this was rejected as he has “consented” to the matter being dealt with on paper. He didn’t want the cost and further aggravation of an appeal but felt badly let down by the system and did not realise that he had the right to object. The rules have previously indicated that parties must make a clear election to avoid a personal hearing and it raises some fundamental human rights issues.
The court has in more recent cases changed its order stressing the parties right to object to the order for a paper hearing however I would question whether the average litigant in person realises they are making this election. I also disagree that it is right to remove formal hearings and the ability to test evidence in person. If this is going to continue than I wonder if we need judges at all – I am sure that a software package could be developed enabling the parties to feed in all relevant information and receive a decision based on set criteria almost instantaneously.
Call me old fashioned but I believe that oral hearings are a key element of our long established system and we move away from them at our peril!
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