This article originally appeared in the New Law Journal.
Geoffrey Bindman (London, BIHR): The decision by Heather Mills to sack her lawyers and conduct her own case against her former husband, Sir Paul McCartney, highlights fundamental questions about our judicial system.
Of course she is by no means the stereotypical litigant in person. The well-heeled tabloid millionaire celebrity bears no resemblance to the shambling, raincoated figures tramping the corridors of the Law Courts, tattered documents spilling from a carrier bag , whom I remember from my early days in the law.
But times are changing. The costs of legal representation are daunting even for those who can afford to pay, and the steady erosion of legal aid leaves more and more people with no choice but to struggle through an unfamiliar process with little or no help. The litigant in person will become the norm as lawyers price themselves out of their own courts and governments refuse to subsidise them.
What seems eccentric about Heather Mills is that when millions of pounds were at stake and with no lack of means to pay for an advocate, she chose to dispense with one. Evidently she thought she could do better on her own.
Of course she was not really on her own. She already had the benefit of legal advice and preparation from Mishcon de Reya, Princess Di's solicitors, and had parted company with them only shortly before the hearing. When she went into court she was accompanied by a solicitor, a "Mackenzie friend" able to give advice and take notes but without the right to speak. At least he was on hand to whisper in her ear when she seemed to be doing something wrong.
We do not know whether she was right to speak for herself. At least one QC specialising in such cases has said she would certainly have done better with a professional advocate.
It is a convenient assumption of advocates that their involvement makes a difference. My own experience tells me that this assumption is generally correct, if only because the system makes it so. There may be exceptional cases where the client is sufficiently articulate and skilful to match the trained lawyer, but in truth skilled advocacy and representation have become essential components of our very costly adversarial system.
The advocates are the key players, not the judge, who is above the fray, refereeing from his lofty perch the gladiatorial combat taking place below. The judge may not enter the arena: he has no responsibility for investigating the facts or the law. If the litigant or lawyer fails to mention a relevant fact or authority, and leads the judge to the wrong conclusion, that is just bad luck for the losing client, who has nothing to blame but history.
In his Edward Bramley lecture at Sheffield in 2003, Sir Gavin Lightman, now retired after long service on the High Court bench, pointed out that at three stages the quality of representation and the availability of resources are crucial to the outcome of litigation. The first stage is that of advice - whether and how to issue or defend a claim; the second is preparation, and the third is representation at the trial. "Common experience", he says "reveals how unbalanced the legal process is at all three stages between the 'haves' and the 'have-nots'.... the scales of justice favour those who can afford to buy it."
He gave an example. A drug company was sued for causing deformity in children born to parents who took one of its products. The claimants had limited legal aid funds. The drug company, whose reputation and large business were at stake, poured massive resources into the case, including weeks of expensive training for their lawyers in the technical aspects. Extensive research efforts went into challenging the studies relied on by the claimants, who could not afford to mount a contrary challenge. As Sir Gavin says "the defendant out-resourced the claimants" and won.
There is also a crucial cultural dimension which favours professional advocacy. The judge has grown up in the legal profession. He is attuned to the patterns of thinking and expression which the legal practitioner inevitably assimilates. The judge and the lawyers talk the same language. They understand each other through words, gestures and mannerisms. The litigant in person may be able to ape some of this but the judge will, consciously or not, respond more sympathetically to the lawyer. However hard the judge tries to be fair, and helpful to the litigant in person, the lawyer will get a better hearing.
Is the inevitable conclusion that there can be no level playing field or equality of arms - hence no justice - where one party is legally represented and the opponent is not? Across the board, it would be hard to enforce a rule that all parties must be legally represented or none. Would it be right to prevent Paul McCartney from having an advocate because Heather Mills chose not to have one?
The real problem is not for Heather Mills, who exercised a free choice, but for those who desperately need effective legal representation but cannot get it. Current legal aid policy is hugely unjust, and the cause of huge injustice. The Legal Aid Scheme, as embodied in the Legal Aid and Advice Act 1949, made a genuine attempt to provide equal access to the justice system. Broadly speaking, legally aided litigants were on the same level as those paying their own way. The difference was that the Legal Aid Fund picked up the bill. All were entitled to service of equal quality. This principle has now been abandoned.
Of course, many who could not afford to pay their own way have always been excluded but now that number is very much bigger. It is hard to believe that the extent of "unmet need" for legal services, which has been the subject of a number of academic studies in past decades, is not at an all-time high.
Governments have forgotten the fundamental value of equality in our justice system. The corporations and institutions (including the government itself) are unconstrained in the resources they devote to litigation and prosecution. The individual with limited or no resources is denied justice because there is a fatal imbalance between the parties, both in civil and criminal cases.
Equality is everything. If the government cannot expand the resources of the poor litigant, it must restrict those of the rich. This is a challenge that no government has yet faced up to.
