Unrepresented litigants in first instance proceedings
Executive Summary
This report explores detailed quantitative and qualitative data on unrepresented litigants from four courts in first instance civil and family cases, excluding small claims cases. It provides a detailed picture of the prevalence and nature of unrepresented litigants and the impact of non-representation on themselves, the courts and their opponents. The main findings are:
1. Unrepresented parties in cases were common. It was usually defendants and not claimants/applicants who were unrepresented. Obsessive/difficult litigants were a very small minority of unrepresented litigants generally, but posed considerable problems for judges and court staff.
2. A large part of the reason for non-representation, especially in civil cases, was in fact non-participation. Some unrepresented litigants were in fact partially represented. Although there was evidence that significant numbers of unrepresented litigants had some advice on, or assistance with, their case, the evidence suggested this help was ad hoc.
3. A small but significant proportion of cases involved at least one active party who was unrepresented throughout the life of their case. Cases where both parties were unrepresented were rare. There were variations in non-representation by types of case and litigant. Some unrepresented litigants indicated vulnerability.
4. Although sometimes less serious and less heavily contested than cases involved in represented litigants, what was at stake for litigants was nevertheless significant. Parties go unrepresented for a range of reasons including choice and the lack of free or affordable representation.
5. There is little evidence of an explosion in the numbers of litigants in person, though the situation is unclear in the family courts.
6. Participation by unrepresented litigants is not the same as active defence. Levels of activity suggested cases involving unrepresented litigants may have involved more court-based activity than those cases where all parties were represented. Within cases involving unrepresented parties, participation by unrepresented litigants was generally of a lower intensity than participation by represented parties.
7. The bulk of participation took place via the court office not the court room.
8. Unrepresented litigants participated at a lower intensity but made more mistakes. Problems faced by unrepresented litigants demonstrated struggles with substantive law and procedure. There was other evidence of prejudice to their interests.
9. There was at best only modest evidence that cases involving unrepresented litigants took longer, though cases with unrepresented parties were less likely to be settled.
10. Some courts and local advice providers may be more welcoming to, or encouraging of, unrepresented litigants than others. Courts were not confident signposters of unrepresented litigants to alternative sources of help.
11. Judges recognised that unrepresented litigants posed a challenge to the ‘passive arbiter’ model of judging and responded to that challenge with varying degrees of intervention. Court staff recognised unrepresented litigants’ needs but were unsure of what help was permissible because of the way the ‘no advice’ rule was managed.
12. Court staff and judges perceived that improvements could be made in the way that unrepresented litigants were handled.
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