Saturday, February 4, 2017
High costs and rise in repossessions drive growth of lay litigants
Judges say the unrepresented are poorly advised and lack knowledge of procedures
Dealing with cases involving a number of people facing repossession orders for their homes last week, High Court judge Mr Justice Séamus Noonan questioned where some of them were getting their legal advice.
All of them had represented themselves as lay litigants. Having heard a series of applications for judicial reviews, he dismissed all of them as not qualifying under the rules for such an examination.
Told that some had got advice from an unnamed friend before coming to court, he commented: “There’s a lot of misinformation out there.”
Mr Justice Noonan is not the only member of the bench to be concerned. Large numbers of people are opting to deal with the legal system without any professional representation, much to the dismay of judges and the legal profession, an analysis by The Irish Times shows.
Last year, there were 641 cases listed on the High Court’s busiest list, the plenary list, involving lay litigants on at least one side. This represented one in 20 of cases on the list. In 2014, there were 420 such cases. One-third of cases before the Court of Appeal involve lay litigants.
The practice of people dispensing with the services of solicitors and barristers for High Court and Court of Appeal cases began in earnest during the economic crisis, but it shows no sign of slowing down.
Lack of knowledge
Besides worrying that some people are coming to court poorly advised, some judges are also concerned that lay litigants are clogging up court lists because they lack knowledge about procedures.
The concerns are shared by the Chief Justice, Susan Denham, who late last year asked the Bar Council to put together a panel of barristers who could, for free, advise lay litigants appearing before the Supreme Court on issues of public importance.
Eilis Barry, chief executive of the Free Legal Advice Centre (FLAC), said her organisation has noticed a substantial increase in calls from people who intend to represent themselves in court, though it is usually not by choice.
“In many instances, they fall between the two stools of being ineligible for civil legal aid, which has a very low income threshold, while still not being able to afford a solicitor.
“FLAC would be concerned that a person going to court unrepresented may not know the procedures, may not know how to marshal the evidence and present it and make the best case for themselves. “They may be up against respondents who have easy access to legal advice and representation. There isn’t a level playing field when one party is a lay litigant,” she told The Irish Times.
The legal aid organisation has recently produced videos for lay litigants covering the basics of going to court: “It covered things like calling the judge ‘judge’, be respectful, ask for permission to speak, things like that,” said FLAC spokeswoman Yvonne Woods.
“Stuff that’s not necessarily intuitive, especially if you’re scared out of your wits and are standing up in court for the first time. You do not know how to behave.”
The Law Society and Bar Council have also expressed concern. “The Bar of Ireland has concerns about lay litigants obtaining advice from unqualified persons,” said spokeswoman Shirley Coulter. “The use of professional barrister services in court is in the best interests of clients and is the most efficient and effective way to ensure the proper administration of justice. Ken Murphy of the Law Society declared: “No sensible person would allow themselves be operated on by someone who had no qualification in medicine. That common sense approach should be followed in legal matters, also.
“The public should be very wary of relying on the theories, judgement or advice in legal matters of individuals who have no qualification in the law.”
Murphy and others in the legal world have been irritated by a book entitled DIY Justice in Ireland–Prosecuting by Common Informer published by Integrity Ireland and written by Stephen Manning, one of several small groups who allege that Ireland’s legal system is corrupt.
Protests have led to the suspension of court sittings. In Castlebar Circuit Court, members of Integrity Ireland and Land League West sprinkled holy water and recited the Rosary. In another, individuals tried to place a judge under citizen’s arrest.
Meanwhile, a group called Freemen of the Land have upset hearings, arguing that all law is contractual; in other words, it only applies if a person consents to it. Believers refuse to answer or obey the court, saying they have not granted it jurisdiction.
Such protests have led to a security review by the Courts Service. Repossession hearing lists are examined beforehand to see if extra security is needed. One Circuit Court judge refuses to hear cases unless there is a garda present.
Not every lawyer is critical of the motivations of such groups, even if they doubt the advice given. “I’ve talked to some of them, they see themselves as trying to defend very defenceless people and the systems are stacked against them,” said one.
“You can see where they are coming from. On the other hand they are giving questionable information to very vulnerable people who are going into a legally-binding situation and that is awful. But in a vacuum where there isn’t a freely available State service, that is going to arise, somebody will rush in to fill that vacuum,” said the lawyer, who did not wish to be identified.
Barristers and solicitors often dread appearing against lay litigants. “The court gives them a lot more latitude,” said barrister Fergal Foley. “Most barristers feel that a judge becomes pretty much an opponent rather than an independent arbiter. “Very often they are quite sincere people who really believe that they have a cause and that the world is against them and particularly the entire legal profession is against them.
“It’s often because they have gone along to a solicitor who has probably taken some money from them before telling them you have no case, that it’s completely hopeless. They think they have been defrauded and that they have a very good case.”
Lay litigants are much rarer in the criminal courts where the majority of defendants who cannot afford a lawyer receive legal aid. People representing themselves in criminal cases have often dismissed their legal team because they did not like the advice given to them.
Barrister Maurice Coffey prosecuted a man who had fired his legal team on the second last day of the trial. “He said the whole thing was a conspiracy between the guards, the judge, the prison service and his own barrister. He said the only one who wasn’t in on the conspiracy was me.”
Despite prosecuting the case, Coffey had to guide the accused in his defence. “Effectively you have to wear both hats. I had to make it clear that I was steering it right. So I had to remind the judge to do certain things on his behalf.
“I lent the accused law books and things like that. It would be an obligation in criminal matters. You would have to be very careful that everything is done correctly,” Coffey said.
“Barristers throw our eyes to heaven when we hear there is a lay litigant or someone who is defending themselves because it just adds to the inefficacy of the case.
“They don’t understand how to cross-examine. They start making speeches instead of asking questions. You always dread when there’s a lay litigant for the other side purely because you know it’s going to be painful to get to the finish line,” he said.
However, he has some sympathy for them: “To fight a civil case is a very expensive business. Very often someone is up against a corporation who can fight everything tooth and nail and can appeal everything. The risks are huge.”