Litigants in Person and Access to Justice in an Adversarial System

Wednesday, February 17, 2021 - 17:01

LITIGANTS IN PERSON AND ACCESS TO JUSTICE IN AN ADVERSARIAL SYSTEM

An excerpt from the forthcoming Litigants in Person: Principles and Practice in Civil and Family Matters in Singapore, published by Academy Publishing. Written by Assoc. Profs Jaclyn Neo and Helena Whalen-Bridge of the National University of Singapore, it is the first academic examination of litigants in person in the Singapore legal system. Order the title here. A related webinar on 24 February 2021 is also open for registration here.

LiPs It is a cardinal principle of a just legal system that every party to a lawsuit has the right to present their interests and have them considered in the resolution of disputes. After all, “the best laws, the most transparent, the most fair, the most just, will still count for nothing if people do not have access to them”.In the common law world, the right to access justice is reflected in the above-quoted provision of the Magna Carta. This clause, which originally appeared as chapter 39, sits at the heart of a set of provisions in the Great Charter that guarantee proportionality, due process, and impartial experts to adjudicate the resolution of disputes. As Lord Woolf of Barnes observed in a lecture delivered to the Singapore Academy of Law in 2005, these provisions in the Magna Carta encompass core features of the common law. The foundational nature of the Magna Carta has also been judicially confirmed in Singapore, particularly in relation to fundamental liberties in the Constitution of the Republic of Singapore.

Ensuring access to justice implicates the fundamental values of society as a whole. A 2019 global survey conducted by the World Justice Project estimates that more than “5.1 billion people – or approximately two thirds of the world’s population – are not getting the justice they need for both everyday problems and severe injustices”. As law provides the foundation for “nearly every aspect of people’s lives, including health, employment, education, [and] housing”, the Organisation for Economic Co-operation and Development asserts that the inability of persons to resolve legal problems “diminishes access to economic opportunity, reinforces the poverty trap, and undermines human potential and inclusive growth”.

The United Nation’s 2030 Agenda for Sustainable Development includes Sustainable Development Goal (“SDG”) 16.3, which states that countries should “[p]romote the rule of law at the national and international levels and ensure equal access to justice for all”. Making progress towards this goal requires countries to ensure that “all people and communities have access to legal and justice services that are of high quality, appropriate, targeted, timely and cost-effective”. There is “growing recognition” that access to justice is “foundational to economic and social development”.

Access to justice, however, can mean many things. A formal conception of access would refer merely to an individual’s formal right to litigate or defend oneself. The “freedom to demand remedies for civil wrongs or, when faced with a criminal charge or a civil infraction, the existence of a fair and transparent forum in which to defend oneself and an opportunity to be heard by an impartial decision maker” is important, but it has to be realisable in practice. There is now recognition that the 19th-century conceptualisation of the formal right to representation “amounted in practice to denials of effective access for much of the population”. This recognition led to the 20th‑century movement to extend access to justice beyond a merely formal right, towards a broader definition of access. The broader approach is consistent with, for example, the definition provided by Christine Parker, which includes:

… accessibility of court processes for resolving disputes over mutual rights and responsibilities, availability of adequate legal representation … access to more informal legal processes such as small claims courts and administrative tribunals, availability of legal advice, [and] public legal education.

The United Nations Development Program (“UNDP”) agrees that access is “much more than improving an individual’s access to courts, or guaranteeing legal representation”, and that access “must be defined in terms of ensuring that legal and judicial outcomes are just and equitable”. There must be a stronger emphasis on “improving the capacity and capability of the justice system, and overcoming barriers to accessing the system”. The Magna Carta’s assurance that right or justice will not be sold, refused, or denied must surely be real and substantive access to justice for all persons and not simply a formal access to justice.

Understood in this broader fashion, access to justice has a fraught relationship with the right to represent oneself in litigation, that is, the right to pursue litigation even if one is not represented by a legal representative. The right to litigate in person has been described as a “natural expression of the fundamental right of access to the court”. In Singapore, the right to litigate in person is provided for in the Rules of Court (“ROC”). Under Order 5 rule 6 of the ROC, “any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the Court by a solicitor or in person”. Similarly, a defendant to an action begun by writ may enter an appearance in the action and defend it by a solicitor or in person. There are two limitations to this rule: where the litigant is a person under a disability, or is a corporate body.

On the former, Order 76 rule 2 of the ROC states that “[a] person under disability may not bring, make a claim in, defend, make a counterclaim in, or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his litigation representative”, and the litigation representative must act through a solicitor. On the latter, corporate bodies are prima facie restricted to representation by a solicitor. Prior to 2011, a body corporate could not begin and carry on proceedings in court otherwise than by a solicitor, except as expressly provided by any written law. This legal restriction was changed in 2011 with the introduction of Order 1 rule 9(2) of the ROC, which now permits corporate bodies to be represented by their authorised officers if leave of court is given. Under Order 1 rule 9(6) of the ROC, the classes of persons who can act on behalf of the company are restricted to “any director or secretary of the company, or a person employed in an executive capacity by the company”.

The right to represent oneself in court proceedings may be an established right, but questions remain as to the extent to which effective representation in formal systems of dispute resolution can be accomplished without a lawyer or sufficiently trained person. The law may ensure that litigants have a right to represent themselves and not be excluded from the legal system simply because they do not have legal representation. However, the legal system itself may limit the litigant in person’s (“LiP”) access to justice, particularly in terms of equality of access, due to its complex procedural rules and substantive law. Existing research in common law jurisdictions suggests that a lack of legal training can often be a serious limitation on an LiP’s capacity to prosecute or defend his or her case, depending on, inter alia, the level of complexity of the matter. A report based on surveys conducted by Richard Moorhead and Mark Sefton on LiPs in first instance courts in the UK showed that LiPs tended to have greater difficulty in conceptualising key claims or defences in their cases as well as understanding and applying the finer points of substantive law. Another study of the English courts by Paul Lewis established that LiPs commonly have difficulties adducing evidence and complying with complex evidentiary rules, and often found it hard to establish the necessary legal basis for their case.