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Senior Judge Laments ‘Emasculation’ of Legal Aid

A senior judge has lamented the impact that the ‘emasculation’ of the legal aid budget is having on the administration of justice and expressed the view that any savings achieved by the Legal Services Commission could be outweighed by the increased cost of the judiciary having to deal with ever-increasing numbers of unqualified litigants appearing without legal representation.

Sir Alan Ward, who recently retired as a Lord Justice of Appeal after almost two decades on the bench, made his comments in the context of a ‘depressing’ dispute over the sale of a company between two businessmen who had both resorted to representing themselves after running out of money to fund their case.

He said: “What I find so depressing is that this case highlights the difficulties increasingly encountered by the judiciary at all levels with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved.”

He added: “It may be saving (money for) the Legal Services Commission, which no longer offers legal aid for this kind of litigation, but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable.

“This appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years’ service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”

The Court of Appeal ruled that, in the absence of legal representation, the first instance trial of the dispute had gone seriously off course and the hard-pressed judge had been forced into over-reliance on documentary, rather than oral, evidence. Although the waste of costs involved was a ‘tragedy’ for the parties, a re-hearing of the case was required, subject to any prior attempts at mediation.