Duncan Lewis

Self representing litigants could not be coaxed nor forced to take mediation course

Date: (28 March 2013)    |    

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Former lord justice of appeal Sir Alan Ward has warned that it was impossible to force people off the trial track onto the parallel track of mediation in wake of a big increase in the number of litigants in person because of cuts in free legal help which were coming into force on Monday. The courts would be unable to cope with the situation.

He cited an instance when just before his retirement at the Court of Appeal, he ruled on a dispute between two businessmen that the appeal would certainly never have occurred if the litigants were represented.

Sir Alan said the case "shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation. Though due to austerity self representing litigants have come to stay justice would be ill served due to emasculation of legal aid services he added.

Both trial and mediation were need of the modern day demands of civil justice which could be an excuse by the Ministry of Justice (MoJ) for withdrawing legal aid from swathes of litigation by arguing that making mediation a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues.

Sir Alan said that he agreed with the idea of mediation and he even ruled on the same but the underlying principle was a dutiful belief when parties were unwilling to even try mediation.

In the case where the businessmen had brought the appeal, the trial judge had tried the best to persuade the parties to put themselves in the hands of a skilled mediator but they refused. He used the metaphor how a mule which could be dragged to the water but could not be made to drink if it stubbornly resists.

He added that if litigants could make to run around the litigation course vigorously in a muck sweat they would find the mediation trough more friendly and desirable.

Delivering the leading judgment in Wright v Michael Wright Supplies and Anor [2013] EWCA Civ 234, Sir Alan said the dispute between two intelligent businessmen had come after a successful collaboration and ensued into a vengeful litigation and after having run out of funds for legal fees they became stubborn and litigated in person.

Sir Alan said the trial judge, Judge Anthony Thornton QC, had struggled "manfully, patiently, politely, carefully and conscientiously" with the case, but the appeal was based "essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence".

Sir Alan said he found it depressing that the case highlighted the difficulties increasingly faced by the judiciary at all levels when dealing with litigants in person.

He said judges were expected 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 managed cases by trying to convince parties to focus on the issues that needed to be resolved.