Dr Kate Leader – written evidence (CIC0011)

 

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

 

 

This evidence addresses the following questions asked by the Constitution Committee:

  1. How effective are virtual court and tribunal proceedings? What are the benefits, disadvantages and challenges of virtual proceedings?
  2. What is the impact of virtual proceedings on (1) litigants?
  3. What are the implications of virtual proceedings for: (1) access to justice, (2)  participation in and fairness of proceedings?

It focuses specifically on litigants in person (LiPs).

To date, litigants with intermittent representation or no access to representation at all have received almost no attention in the analyses of the effects of COVID-19 and discussions and reports into virtual courts and their accessibility so far (McKeever, 2020). 

This evidence draws on my extensive original research into the experience of LiPs in the courts. The research was conducted for my PhD at the Law department of the London School of Economics, developed in my current post as a Lecturer in the York Law School at the University of York, and parts of which have since been published in peer-reviewed journals in 2020.

 

 

KEY POINTS:

Introduction:

1.    The HLCC inquiry into Covid, virtual proceedings and its impact on the Courts is an important and welcome step. This response emphasises the need to ensure that the particular experiences of those without sustained legal representation are represented in research and evidence gathering around the impact of virtual courts. To date, research that has considered the impact of virtual proceedings has failed to make any particular distinctions between parties based on the degree of representation.

 

2.    We know, however, from previous research, that the impact and potential consequences of not having representation can be significant. We also know, following the passage of LASPO, that there are more people than ever without sustained legal representation involved in bringing and defending legal proceedings. It is therefore of critical importance that we consider their particular experiences and perspectives.

 

3.    This response is therefore tailored to take this into account, focusing on the perspectives of those without sustained legal representation and the particular impacts and consequences virtual court proceedings may have on them. This report is based on my doctoral research at the LSE Law department, involving in-depth interviewing of litigants in person, as well as research into the policy information released by the Ministry of Justice detailing the Court Modernisation programme, and further recent Covid-19 related reforms and virtual justice.

 

Question 1: How effective are virtual court and tribunal proceedings? What are the benefits, disadvantages and challenges of virtual proceedings?

 

BENEFITS:

4.    The move to virtual courts is likely to have two significant benefits for unrepresented litigants.

 

5.    Greater flexibility in terms of accessing courts: A key theme that emerged from my research was how disruptive attending court was for those who represented themselves. Because court sittings took place during work hours, this posed specific challenges to those who were attempting to pursue or defend claims whilst maintaining work. In three cases in my study sample, the inability to attend both court and work led to litigants in person losing their employment. Online courts can therefore be of benefit in minimising disruption and impact on other employment and responsibilities.

 

6.    Reduction in Expense and Time in Travelling to Court: What is clear is that the most positive potential of virtual courts from the perspective of litigants in person may potentially be that LiPs no longer need to travel to a court; with the significant court closures, and the current impact of COVID on public transport, being able to participate in court proceedings from home could be of benefit. Litigants in the sample of my study talked of the expense, delays and difficulties accessing courts, with many having to travel over an hour from their residence to attend.

DISADVANTAGES:

7.    Those benefits, however, are accompanied by disadvantages and risks of significant detriment to unrepresented litigants.

 

8.    Conflicting with personal and caring responsibilities: The possibility of virtual hearings occurring outside of usual business hours brings potential challenges to litigants in person and may not be evenly distributed due to the gender divide in caring responsibilities, it would raise the concern that female LiPs would be less able to access and participate in virtual court proceedings.

 

9.    Loss of contact with support staff and agencies Virtual court proceedings risk further pushing LiPs from support services that are based around courts and provide assistance to those attending– such as Citizens Advice Bureau, court staff themselves and Support in Court. This means LiPs navigating online are much less likely to have any kind of assistance or advice which may impair their ability to effectively participate and which may have an impact on other court users.

 

10.          Replacing human contact with telephonic or online communication reduces the quality of information. Research has clearly indicated that LiPs benefit from human contact regarding their legal proceedings and their options; the move to online or telephone contact only risks impairing the quality of information as well as disincentivising LiPs from accessing such resources in the first place.

 

11.          Research has demonstrated online information is of poorer quality and of less specific use to litigants. 

 

12.          Removing local contacts and supports in place of online services also undermines crucial sources of local knowledge (such as other support services LiPs can be signposted to in their local area) and dilutes the quality of such knowledge. This is particularly an issue for LiPs with vulnerabilities who need greater support and are much less likely to receive it. This has consequences for their access to justice as well as causes knock-on effect for other court users.

 

13.          Virtual Courts may undermine litigant trust in the court process. LiPs only being able to pursue proceedings online if they fall below a particular threshold of financial or legal importance risks marginalising them further from access to justice as it may be perceived as a “second-tier” and undermine litigant trust in court process.  As participants who are already marginalised from full participation, this risks exacerbating this inequality and eroding trust.

 

14.            It is unclear what impact video or written communication may have versus in person. LiPs frequently have difficulty adducing relevant information and are dependent on judges to facilitate the presentation of their evidence. The reduced contact resulting from virtual hearings may result in LiPs being given much less assistance than is required for them to effectively represent themselves. This further marginalises LiPs from court proceedings and undermines their access to justice

 

15.          LiPs depend on effective communication regarding legal procedure and technical communication; it is not clear how remote courts will be able to provide such assistance and translation, risking causing further difficulties for LiPs in navigating legal process.

 

Recommendation:

16.            Recommendation 1LiPs have a right of access in all legal proceedings but are commonly perceived as “difficult” or aberrant from what is “normal”. They require specific assistance and support to facilitate their ability to access justice. This should be included in specific guidance around virtual court processes which to date have largely failed to consider them or differentiate between those who have and have not received legal advice.

17.            Recommendation 2: Virtual court processes should not replace the possibility of in person communication, particularly with support agencies set up to assist LiPs.

18.            Recommendation 3: Such support services need to continue to be available for in person access, rather than only online or via the telephone to ensure quality and specificity of assistance and advice, as well as provide signposting.

19.            Recommendation 4: Online/remote court processes risk isolating LiPs from contact with court staff, legal agents and other individuals which could lead to a perceived marginalisation from legal process. This may undermine trust for litigants. LiPs need to be included in full discussions about virtual courts and their implications.

 

Question 2: What is the impact of virtual proceedings on (1) litigants?

 

20.            A key challenge of ascertaining the impact of virtual proceedings on litigants is that there will not be a uniform answer to this; whilst some LiPs may welcome greater online proceedings which may enhance their access, a greater risk is the digital exclusion that may result for many. Research indicates a substantial portion of adults do not have access to reliable internet or computers at home. This is particularly marked in older and poorer sections of the population. Whilst there are measures outlined to “catch up” those who struggle digitally, these are inadequate in explaining how the uneven allocation of access to resources and information may be addressed, particularly for vulnerable litigants in person.

 

21.            Such forms of digital exclusion are likely to result in an inability to access and participate in court proceedings, resulting in effective barriers due to age, and socio-economic position. Far from widening participation, virtual court proceedings without other commitment to an allocation of public resources, accessibility of quality online information, and continued in person access to advice, risks undermining access to justice.

Recommendation: 

22.          Recommendation 5: It is essential that virtual courts are not the exclusive means of access to litigation for those without legal representation. It is critical that individuals are still able to access assistance and advice in person by court staff, via telephone, and via support agencies, such as the Citizens Advice Bureau and Support in Court.

 

23.          Recommendation 6: Whilst virtual courts offer some important advantages, if they are pursued at the cost of closing other forms of accessing courts, this will result in unequal access due to significant digital exclusion and this should be a focus of specific further research in relation to litigants in person in particular.

 

Question 3: What are the implications of virtual proceedings for: (1) access to justice, (2) participation in and fairness of proceedings?

 

24.            There are critical questions to be raised about the impact of remote courts on litigant trust. My doctoral research clearly demonstrates LiPs receive differential treatment. While LiPs have a theoretical right of access to justice, in practice they tend to be treated as “difficult” or aberrant from normal proceedings and face significant barriers. Such treatment is symptomatic of structural inequality, and not necessarily of overt or conscious discrimination, but LiPs themselves feel themselves to be at times deliberately and systematically excluded from access to justice by the actions of the legal profession.

 

25.            Negative encounters with the law lead many LiPs to become critics of a legal system they feel fails to adequately perform and leads beyond this, for some, to the development or elaboration of conspiracist ideas to explain the failures they experience.

 

26.            Remote courts risk undermining litigant trust further by impeding LiP access to adequate communication about court proceedings, and taking away critical in person support services.

 

27.            It is unclear in the reports to date what difference it would make in terms of impact for those who received legal advice prior to commencing or defending a claim, versus those who do not have such advice. But this is a critical question that requires specific attention given that the online process is designed to push litigants away from contact with decision makers such as judges who may be able to assist them. It is of particular concern in terms of “inequality of arms” due to the frequency with which an individual is involved in a dispute with a corporation or public body.

 

28.            Overall, remote courts risk exacerbating already existing inequalities facing LiPs when it comes to fairness and equal participation and further research is necessary to understand the particular impact virtual courts will have on LiPs.

 

Recommendations

29.            Recommendation 7: It is critical that further specific research is done into the impact of remote courts on LiPs. In particular, this should consider

-          The impact a lack of legal advice prior to pursuing or defending a claim will have in a virtual court environment. This has not been looked at in any specific detail.

-          The effect of remote courts on the provision of local support services and their availability

-          Digital exclusion that particularly affects LiPs including access to online resources, effective assistance, legal advice, legal research tools, and equipment at home to make communication possible. This includes issues such as uploading documents as well as accessing important resources.

-          How to effectively communicate online with LiPs regarding court procedure and other legal technicalities.

-          How the critical support mechanism provided by a judge to LiPs can be provided in online forums.

 

 

References:

Leader (2019), Litigants in Person in the Civil Justice System PhD Thesis, Department of Law, London School of Economics and Political Science: http://etheses.lse.ac.uk/3763/

Leader (2020), “From Beargardens to the County Court: Creating the Litigant in Person,” Cambridge Law Journal 79.2: https://www.cambridge.org/core/journals/cambridge-law-journal/article/from-bear-gardens-to-the-county-court-creating-the-litigant-in-person/8D7DB9CCA07F4E257AD5C46886842D85

McKeever (2020), “Remote Justice? Litigants in Person and Participation in Court Processes during Covid-19,” Commentary, Modern Law Review https://www.modernlawreview.co.uk/mckeevers-remote-justice/