Concerned on court hearings
As someone who has spent about 25 years defending housing possession cases in the county court, I am becoming increasingly concerned at how things are now playing out, both in terms of the experiences of people using the courts and their ability to obtain justice.
I’m a lay rep. meaning I’m not legally qualified but I’ve done well over 400 cases in my time, starting back in the 90s at the fledgling duty desk scheme in Bromley County Court in South London that was at that time, run by CAB Money Advice, using volunteers like me.
As a non-qualified person, I have no rights of audience and have to ask in every case for permission to speak. I don’t engage in litigation, which is a reserved activity but I do assist tenants and mortgagors to seek adjournments, suspensions, dismissals, and kick-start the odd ex-parte injunction application.
Why do I do this?
Well, when I started the main reason was that the people I was working with were not eligible for legal aid or just stuck their head in the sand until D-Day. This is still the case with some of them but in the vast majority they are eligible but you can’t find a legal aid solicitor who can take the case on, so they are usually faced with doing it themselves or leaning on people like me.
But what about the duty solicitor?
I hear you ask.
Well for a start not all courts have them and in those that do they generally aren’t there all the time. Plus they are often drowning in cases of their own, without the luxury of even 10 minutes with the client before going into court. Whereas I might have spent 2 months with a tenant before the hearing, knowing the details of their case inside out, as well as having had the time to fully research the legal ins and outs and create a properly drafted skeleton argument for the court.
Judges take different approaches to the rights of audience issue.
In a recent hearing, the judge began writing my name down and said
“So Mr Reeve-Lewis, you’re a lawyer from the council yes?”
To which I hurriedly corrected this misunderstanding and, completely unconcerned, he just waved his hand and said
“I’ll just put you down as tenant’s rep then”.
Just a few days later in another court the judge flatly refused permission to let me speak, leaving the poor tenant, with limited command of English, to bumble on as best he could, whilst the judge became increasingly irritated by his attempts to save his home.
Don’t get me wrong, I totally understand the reason for having defined rights of audience and I understand the problems with reserved activity and costs protection but we’re talking about keeping people in their homes, which is hugely important.
If we could get qualified representation I would happily stand down but usually, we cant.
And don’t get me started on Legal Aid…
A year or so ago I was invited to speak at an event for housing advice people where Jan Luba QC was doing the keynote speech. He began by addressing the complaint that nobody can find legal aid solicitors, to which his view was:-
(Jan’s words, not mine). But I beg to differ. I spend my week ringing around the usual suspects, only to have the same conversation
“Sorry Ben we just don’t have capacity, I’m snowed”.
The defendant can, of course, represent themselves – but court can be an intimidating place at the best of time and often the points being discussed are so complex and arcane that they don’t understand one-tenth of it, especially if the judge is behaving like Basil Fawlty on a bad day, which sadly, so many of them do.
Surveys are all very well
The CJA is currently hosting panels trying to improve the “User experience of the county court”. But I can’t help noticing that not one of the people who sit on these panels is actually a court user, they are all judges and lawyers, familiar with the court as a place of work.
They should be talking to Mrs Patel or Mr Robinson who had been through the system and perhaps lost their house without ever having understood what the hell was going on. Why ask a footballer to advise on the seats or facilities of the club they play for when they only ever see it from the pitch?
And I’m not just talking about inside the courtroom either.
Ushers can regularly be unapproachable and rude to anyone not clearly a lawyer and don’t even get me started on the court listings office staff, whose legendarily un-cooperativeness you have to deal with by being obsequiously polite, hand wringingly humble and apologetic, lest they draw the shutter down on the glass window they hide behind when you simply ask if they have an EX160 handy as the forms carousel is empty.
The experience of the court user, if the CJA want my opinion, is that courts are intimidating, hostile, unhelpful environments to anyone not trained to work there. From the moment you dump your keys in the plastic tray, whilst missing the stray 5p coin in your pocket, that sets the metal detector off to the clear annoyance of the security guard, to the moment you can’t find a crucial document in your folder and get shouted at by the judge for speaking when not spoken to.
For most, it’s a horrible, horrible experience. The annoying thing is, it doesn’t have to be.
Here’s my solution
Last year the MoJ did a survey and found that cases where a person represents themselves, take on average, four times longer.
Whilst I and people like me who do similar work, may not be qualified or regulated, we do, through experience, know how to present a case quickly and efficiently.
We aren’t doing litigation, just doing simple 10-minute hearing stuff like adjournments, to allow the council’s homelessness unit time to deal with the rent arrears, which benefits the landlord as well. Why can’t there be a short, say three months, duration course with a recognised qualification, that skills people up in basic and essential defending possession cases?
Make the concomitant changes to rights of audience being dependent on that qualification, leaving all the complex counterclaims and proper litigation to lawyers.
I know lawyers will be squirming in their seats at this point and I do know that many routine cases turn out to be anything but when the proceedings start.
I’m a seasoned veteran of the unexpected turn of events but look at the equation:-
- Nearly 200 courts closed since 2012, causing many to have to double up on cases, causing backlogs
- The increasing inability to source legal aid housing solicitors
- Cases with litigants in person taking four times as long
- The impenetrableness of housing law to non-specialists
- People lacking confidence or the level of articulacy or objectivity to mount a successful defence.
- The fact that homes that aren’t saved will often result in an increase in homelessness applications.
To improve the user experience, courts just need to face the 21st-century post LASPO and court closures.
Plus it would really help if court staff, including judges, remembered that they are public servants and be approachable and helpful.