A rise in the number of litigants in person means many more hearings are having to become inquisitorial in nature rather than adversarial, the new President of the Association of Her Majesty’s District Judges (ADJ) has warned.
District Judge Harold Godwin, who is based at Haverfordwest and Aberystwyth County Courts and took up the presidency this month, said: “Being a judge in the twenty-first century is becoming considerably more demanding than ever before; because the nature of judging, particularly at first instance in civil and family cases, is changing in character….
“Many more litigants are representing themselves without the legal knowledge and skills possessed by the professional lawyer. Nowadays, district judges are often required not only to decide the outcome of a case but also, to tease out from the parties the issues, then establish the facts, ascertain the area of law involved and then determine the outcome following statue and common law.”
The ADJ President added that when parties represented themselves, judges no longer benefited from the lawyers being able to speak privately with their opponents outside court.
He said: “Those discussions often find solutions to cases to avoid the expense and time taken by a full court hearing. The result is more fully contested final hearings and, often, less favourable outcomes for the parties.
“Less favourable in the sense that judges are always constrained to determine cases in the way the law requires whereas a negotiated settlement often enables the parties to settle their differences in ways judges are unable to employ. For example, sometimes a simple apology for what has happened and a resolve to deal with one another differently in future may resolve a case but a judge could not order that to happen.”
Judge Godwin highlighted the increase in the ceiling of small claims from £5,000 to £10,000, which occurs on claims issued from the 1 April 2013. “[This] will allow a greater number of litigants in person to take advantage of the more relaxed procedure that the small claims track offers, without the threat of being financially ruined by a heavy costs order if they lose, with district judges assisting where possible in establishing the salient facts of the case.”
The ADJ President meanwhile warned that the morale of the judiciary was “at an all time low”.
He said the greater amount of time required now to dispatch individual cases was placing a greater burden upon judges and was increasing the weight of responsibility.
“All this, at a time when the remuneration package of many younger judges is being savagely cut. It should not be overlooked that, following appointment, judges cannot return to being solicitors or barristers and therefore have little alternative but to cope with a much less remunerative career than they had contemplated when becoming judges whilst also having to accept the heavier burdens of the job brought about for the reasons stated.”
Judge Godwin also warned that forthcoming restrictions imposed upon the availability of legal aid threatened to have “far-reaching implications in the way civil and family cases are conducted that will, undoubtedly place a greater burden than ever upon the judiciary of Wales and England, although they will be overcome”.