At the same time as the MoJ has published Liz Trinder led research on litigants in person in private family law cases (disclosure, I was a member of the team) the MoJ have published the curiously described, Experimental Statistics: analysis of estimated hearing duration in Private Law cases, England and Wales, Ministry of Justice Ad-hoc statistics bulletin. I think the word experimental is accidental, confusingly hinting at some new methodology or, in research times, an experimental design. Neither are present here.
What we have in fact is a standard, limited analysis of data that does not say an awful lot, and what it does say tells more about the questions not asked than those asked. Ad hoc, is on the mark. Still it’s good that it’s published, rather than being slipped out as some quasi-fact in a ministerial speech or appearance before a Select Committee.
What I think the authors of the title of that piece are actually trying to get across is that this is a very limited analysis, limited in large part because they have very little data to go on and that data is of questionable quality on the issue of how long hearings are.
In presenting the findings of the research there has been an attempt to say the research shows that hearing times have not increased as a result of litigants in person. I do not know if this is the MoJ press office working its magic or the inaccurate interpretation of hard pressed journalists, but it is wrong. The research essentially says the analysis is inconclusive; some kinds of hearings may have increased. And some decreased. But they are not sure. Partly this is because the data is very basic (there is not data on case types and complexity, which is likely to be extremely important). And partly this is because one half of the analysis is based on hearing estimates not hearing times. And partly it’s because the (flawed) numbers they have do not suggest very much. The report puts it as follows: ‘There is no strong evidence from the data sources examined that hearing durations have significantly changed over time.’
Interestingly the research is clearer on a few things that have received less emphasis: ‘The LASPO reforms have had a clear impact on the number of people without legal representation in private law cases.’
That is, the proportion of litigants in person has increased within the proceedings studied. Notably this is from quite a high base. There have been lots of litigants in person for a long time. The professions’ alarm is more recent than the phenomenon itself, but it is a phenomenon which has, on this data, clearly burgeoned.
And, ‘Average time to first definitive disposal has increased each quarter in private law cases overall – this is being driven by sustained increased in cases where both parties or just the respondent are represented, whilst those without representation show no clear pattern.’ I’ll come back to this in a moment.
The final matter which is not mentioned in the report which is obvious from looking at the data in an appendix is that the number of private law family disposals appears to have dropped by about 20%. Where have these cases gone? Is there an underlying dip in family law problems? It seems unlikely that the parties are going to mediation, given the well-publicised drop in mediation appointments. What we appear to know is that the courts are dealing with fewer cases, taking longer but perhaps not listing individual hearings for longer. This looks like a change in complexity of cases or, inefficiency or the extra work required to deal with litigants in person, possibly in combination. We don’t know anything about the nature of those cases still less the actual quality of outcomes on them. Ken Clarke’s prediction that fewer people would litigate looks like it might be coming true. But what people? And what are they doing instead? Vital questions. Only some of these questions are acknowledged in the report and none are answered.
This leads me to my final point. A study which focuses on hearing times is a study which is driven by politics not good policy. No one can possibly believe that the acid test of justice policy is how long family hearings are. It is too narrow to deal with the governments (quite proper) value for money concerns and it is much too narrow to deal with concerns about the proper administration of justice. To deal with hearing times in isolation is to lose the plot dramatically.
Richard Moorhead is Professor of Law and Professional Ethics at UCL, you can read his blog here.