More on Litigants in Person

Thank you to the reader who tipped me off to the article in yesterday’s AFR in relation to unrepresented litigants. It seems that my previous post on litigants in person was topical.

The Victorian Supreme Court is apparently going to set up an unrepresented litigants coordinator to help deal with the expectations and questions from litigants in person.

It would be interesting to know the following:

  1. Did unrepresented litigants initially seek legal advice when their problem arose?
  2. If not, why didn’t they seek legal advice? For example, was legal advice too expensive? Was it too hard to find facilities to help? Or did they fail to realise how serious the situation was until too late?
  3. If they did seek legal advice, why were they now unrepresented? Was it because they were disappointed with legal advice they received? Was that disappointment merited?
  4. What did the unrepresented litigant hope to achieve in his or her case? Was that expectation realistic?

Someone has probably already conducted studies of this sort, but it would be useful if the unrepresented litigant coordinator collected information of this type. It could be pinpointed whether the problem arises as a result of an inability to obtain legal advice, lack of knowledge of the options out there, or because the expectations of some litigants are intrinsically unrealistic. The problem is on the rise, so there must be factors contributing to this rise. If we gain further knowledge about why the problem is growing, lawyers, courts and litigants could look at strategies to reduce the number of litigants who feel aggrieved by the court system and those who continue to bring claims with no hope of success.

For those who are interested, the AFR article is excerpted below:

‘Do-it-yourself claims clogging up courts’, Matt Drummond, Australian Financial Review, 16 June 2006

David Lindsey is one of thousands of unrepresented litigants clogging up the courts. Over two years he made eight separate attempts to launch a lawsuit against Phillip Morris – all unsuccessful. To file his statement of claim, Mr Lindsey first needed to obtain leave of the court because he had been declared a vexatious litigant. But without professional legal advice, and with Allens Arthur Robinson on the other side, he was unable to prove his case had any merit.

In fact, the respondents argued that Mr Lindsey’s “dark conspiracies about lawyers” and the “hawking” of his application from judge to judge was bringing the administration of justice into disrepute.

The case has prompted the president of the Victorian Court of Appeal Chris Maxwell to overhaul the way the court deals with unrepresented litigants, who strain already tight resources and test the patience of registry staff and judges.

In an interview with The Australian Financial Review, Justice Maxwell has revealed the court has just employed an unrepresented litigants co-ordinator to act as a contact point, explain procedures, and most importantly, help manage expectations.

“I had five unrepresented appellants [within] the first five months [of being appointed in July 2005] and I realised there are real challenges for a court in providing the type of hearing that an unrepresented litigant wants and needs, but on the other hand husbanding court resources, scarce as they are,” he told the
AFR.

Unrepresented litigants are a growing problem. Last month High Court chief executive Chris Doogan told a Senate estimates committee that the number of unrepresented litigants making special leave applications had risen from 31 applications 10 years ago to 404 last year. Only two were granted special leave in 2005, but no matter how low the prospects of success they were not dissuaded, Mr Doogan said.

The costs were not only borne by the courts, but also by respondents who felt obliged to respond to the case put against them.

Robert Cornall, secretary of the federal Attorney-General’s Department, told the committee that unrepresented litigants had become a significant problem. “But short of stopping people having access to the courts that they are entitled to in a democratic society, it is very difficult to see what you are able to do if people persist with a claim when they have been squarely told that their claim has no merit.”

According to Justice Maxwell, the biggest problem for judges is managing the expectations of unrepresented litigants. The co-ordinator’s role would be to remove some of that pressure and other courts were looking at the Victorian proposal, he
said.

As for Mr Lindsey, on his ninth attempt and without any help, he succeeded in convincing the court his case had merit. The tobacco giant swiftly appealed but lost, meaning Mr Lindsey’s case will finally be heard.

“He was someone who was good at helping himself. Many of them don’t have that ability and presence of mind,” Justice Maxwell told the AFR. “I feel considerable sympathy for people who have a strong sense of grievance or frustration that they haven’t been listened to, or that the system hasn’t given them justice. The sympathy you feel doesn’t, of course, mean you think they’ve been hard done by. But you naturally feel like … you want to give them a fair hearing.”

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