Wednesday 27 March 2013 by John Hyde
A retired judge has used one of his final cases to launch an attack on the government's 'emasculation' of legal aid.
Sir Alan Ward said judges of all levels were facing increasing difficulties with litigants in person - a problem which will only get worse when legal aid cuts come into force next Monday.
The Court of Appeal judge, who retired last month, criticized the cuts in a judgment http://www.bailii.org/ew/cases/EWCA/Civ/2013/234.html made in December involving two warring former business partners who had run out of funds and decided to represent themselves.
The Court of Appeal allowed an appeal by one of the parties after Ward concluded the original trial judge, Anthony Thornton QC, had 'allowed himself to become distracted' and so wrongly conducted the trial without allowing defendants to call live evidence.
Ward said judges having to micro-manage cases was disproportionately time-consuming and would negate the £350m a year saving the government wants to make through cutting legal aid. 'It may be saving 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,' he said.
'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.
'The 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 18 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.'
Ward said the case had also shown it was not possible to convince intransigent parties to accept mediation. He stated that the MoJ's intention for mediation to offer an alternative to legal aid 'remains a pious hope' when parties are unwilling to try it.
Ward suggested it may be time to review the rule in Halsey v Milton Keynes General NMS Trust where it had been concluded that it would be an 'unacceptable obstruction' on the right to access to the court if mediation was imposed.
In agreeing with Ward's judgment, Mr Justice David Richards endorsed the comments his comments on the difficulties posed by litigants in person. He added: 'Their involvement on one or both sides in complex cases has in the Chancery Division, where I sit, grown from virtually nothing to being a commonplace in only a few years. 'Judges do all they can to help, but these cases impose great burdens on the time and resources of the court and the parties.'