Andrew Stevenson

Recent research by HM Courts & Tribunal Service showed that over a third of civil actions and nearly half of private family cases in England involve party litigants. A key factor behind this phenomenon is 2012 legislation which restricted the availability of legal aid.

In Scotland, the situation is not yet so problematic, although for decades the Scottish government has neglected to maintain rates of remuneration, thereby allowing civil legal aid to become increasingly uneconomic and impossible for lawyers to offer. It is little wonder that legal representation in the sheriff court is diminishing. The notion that this saves taxpayers’ money is facile; public funds not required to pay lawyers must instead be deployed to finance the extra court time that party litigants generally consume.

The unrepresented take longer at court; lawyers are better and quicker at dealing with litigation than laypersons. Given that it takes at least six years of education and training to become a lawyer, this is hardly surprising.

The increasing prevalence of party litigants in the sheriff court has led to a situation where a large section of a typical ordinary court now feels like a radio phone-in where impecunious or feckless members of the public share accounts of financial woes. Miserable stories abound: a gambling addict in thrall to loan sharks, a drug dealer’s heavies threatening to kill a beloved pet, a single mum whose son is mocked at school for wearing trainers that are cheap but the best she can afford. Chancers and rascals make appearances too, like the mortgage defaulter just back from a jolly in Tenerife.

Perhaps with a desire to be rid of them, sheriffs and court staff often seem to want to get party litigants heard early. The practice of prioritising unrepresented parties means that their tales of penury and misfortune tend to be at the start of the court, and narrated before the largest possible audience. If only for the sake of privacy, it would be better to put the party litigant debt cases – sequestrations, calling-up repossessions, Child Maintenance Agency applications and so on – at the end, not the beginning, of the court.

In addition, giving preferential treatment to the unrepresented penalises members of the public who have gone to the trouble and expense of obtaining professional assistance. The litigant who instructs a lawyer must feel peeved that had he not done so, his case would probably have jumped the queue. The knowledge that the meter is running for longer because his lawyer has to wait for lay parties to be served is merely salt rubbed into that wound.

It can be unfairly disadvantageous in other ways for a represented litigant to be facing a party litigant; the latter is more likely to obtain respite, indulgence or a continuation from an exasperated or bored sheriff or one fearful of an appeal – the safe course of action for the first instance court is to avoid making a decision and to defer the disposal of the case to another day and sheriff, for the party “to obtain legal advice”.

A problem shelved may be seen as a problem solved. The true solution, however, is to improve the efficiency of litigation by having it conducted by professionals, an aim that would be served by making civil legal aid more attractive to lawyers.

Andrew Stevenson is secretary of Scottish Law Agents Society. This article first appeared in The Scotsman.