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Litigants in person are apparently flooding into the Courts. This is certainly the case in relation to small claims disputes valued at under £10,000. Following legal aid cuts, there are complaints from all quarters that people can no longer afford representation. In response, family justice minister Simon Hughes has pledged to create a country-wide network of in-court advice centres for unrepresented people. Money provided by the Ministry of Justice will fund the initiative, including the Personal Support Unit, which already assists more than 1,200 litigants a month in eight units across England and Wales. The Ministry of Justice will provide £600,000 to fund the set-up costs and a further £1.4m a year thereafter. Will this just be a sticking plaster for an amputation?

At the same time, a new trade association for McKenzie friends, The Society of Professional McKenzie Friends, has been established, which will ensure that that members are insured and meet minimum standards of qualification and experience. 

It has also been reported that an overwhelming majority of lawyers believe that wealth is becoming a more important factor than it used to be in gaining access to justice. A London firm has surveyed more than 500 solicitors and barristers and found that four out of five lawyers believe the justice system is not accessible to all members of the public. 

 The National Audit Office has reported (“Implementing Reforms to Civil Legal Aid”) that the Ministry of Justice is on track to meet its main objective of cutting legal aid spending by £300m a year, but the reforms, which came into effect under the Legal Aid, Sentencing and Punishment of Offenders Act in April 2013, have also led to a 30% year-on-year increase in family court cases in which neither party is represented and a 56% decrease in family mediation referrals.

In the Civil Courts there has also been an increase in cases issued in the last quarter. The latest statistics show that in July – September 2014, the civil courts dealt with 407,000 claims, up 12% on last year but defences were down by 21% to 40,000. From 2000 to 2013, only 2.5%-3.5% went to trial. 80% of claims issued were money claims. There were 79,604 non money claims, down 11% on 2013. The explanation for this drop is a drop in mortgage repossession claims.

These statistics show that there is no let up on claims being issued, but interestingly there are fewer defended cases and only a small proportion of cases go to trial. 

What is the solution? We would suggest that a greater use of mediation is one solution. In Small Claims, the Court mediation service is on offer and regularly taken up. Given its impressive success rate, could it be expanded to deal with higher value claims? It is doubtful that the budget is there. Obviously with the introduction of the residual ADR scheme set out above, litigants in person may be inclined to go down the ADR route for consumer claims. 

With claims over £10,000, the increased court fees may persuade others to go down the mediation route.

Another solution would involve implementing the recommendations of the Civil Justice Council’s advisory group on ADR, which would involve setting up a new online Court service, “HMOCS”, to deal with low value claims through an online judicial process. There is no reason why ADR could not be built into this system, which is intended to follow other models, such as eBay. It is likely that a pilot will be set up in 2016-17 to offer online dispute resolution in certain categories of cases. Eventually, Professor Susskind foresees a situation where an element of artificial intelligence is involved in dispute resolution, but for the time-being we are probably talking about a “paper” based system, to be followed by video conferencing, as offered by Click2Mediate in the ADR field.