Surge in number of ‘DIY litigants’

On September 27, 2014, in News, by Site Admin

KawaleyA surge in the number of people representing themselves in court has caused new challenges for the judicial system.

Chief Justice, Ian Kawaley, told The Royal Gazette that the new phenomenon meant judges had to play an even more active role in hearings to ensure the unrepresented litigants understood the legal process.

The rise of so called DIY-litigants might also cause the perception of unfairness, when there is none, where individuals do not understand the legal basis for a decision, the Chief Justice added.

Mr Kawaley said there had been a ‘marked increase’ in there number of cases with litigants in person.

He added: “In terms of local civil cases, the most obvious increase over the last year has been in mortgage repossession cases. Close behind have been local company liquidations and general debt collection proceedings.

“The extent to which the Court is involved in the execution of judgment process has also steadily increased over the last several years.

“Linked to this has been a marked increase in the number of cases with litigants in person, a phenomenon which in Bermuda and elsewhere creates new challenges in terms of civil case management.

“This is because existing court procedures are largely designed on the assumption that civil litigants will be legally represented.”

Mr Kawaley described the increasing need for judges to identify legal points for litigants in person as a “major departure” from the traditional judicial role.

He added: “Bermuda’s courts operate under what is known as the adversarial system in which the Court decides cases based on the arguments presented by the parties.

“In civil cases, litigants need to be able to manipulate complicated procedural rules as well as understand the substantive legal principles which apply to their case.

“Where one or more of the parties is not legally represented, the judge is forced to make allowances for the fact that a party is unable to address legal points in their favour and may fall afoul of procedural rules they do not understand.

“The judge will have a duty to identify legal points for the litigant in person, which is doubly difficult if both parties are litigants in person. This is a major departure from the traditional judicial role.

“Where the court finds in favour of a legally represented party, the opposing litigant in person may often have difficulty in understanding the basis of the decision and perceive unfairness where there is none.

“In criminal cases where the litigant in person is the accused, many of these problems also exist in slightly diluted form. An accused person is not generally required to file documents and is never required to ‘prove his case’.”

England and Wales has also seen a similar rise in the number of DIY litigants since April 2013 following the withdrawal of legal aid for many cases.

In 2013-14, 66,388 people had no lawyer in child civil cases in England and Wales, compared with 47,214 in 2012-13.

The figures for Bermuda were not available.

Justin Williams, President of the Bar Association in Bermuda, said: “The changes most recently made to the Bermuda Legal Aid Act in 2011, only withdrew legal aid in civil cases where the applicant was not a Bermudian, a spouse of a Bermudian or the holder of a PRC certificate.

“Consequently, the UK experience is not one that necessarily would be replicated in Bermuda.

“The civil jurisdiction of the Magistrates’ Court is regarded by the Bermuda public as a people’s court, where lawyers are not necessarily required and the Magistrates frequently explain the procedure and law to unrepresented persons.

“The Supreme Court however is very different, hearing cases that usually need to exceed $25,000.00, where procedures are complicated, when persons choose to represent themselves in law suits of this size, without obtaining any legal advice at all, they are bound to run into difficulty.

“Straightforward divorce cases where there are no children would be an exception and legal aid is not available in that situation in any event.

“I agree with the Chief Justice completely both with respect to his comments concerning the hearing of a case and those following a decision by one of our judges.”

 

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