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Warning On Legal Aid Cap

If government tightens up on legal aid too much the courts can expect to see more unrepresented parties (litigants in person) appearing before them according to the human rights group the Magna Carta Society.

Researcher, John Howard said, litigants in person pose problems for an adversarial system of litigation because it is premised on having two equally matched sides able to present their respective cases with skill and in full.

However, If people are unable to qualify for legal aid it is now very easy for them to obtain legislation and research their claims through the Internet and obtain case law from almost every court in the world, including the Court of Appeal in New Zealand.

This is going to present real problems for the Courts, Mr Howard said.

The judge has a critical role in ensuring an unrepresented party gets a fair hearing and understands and accepts the outcome of the case. However, in an adversarial system of justice there are limits on how far the judge can depart from the traditional detached role to assist a litigant in person.

Where there is no legal representation, save in an case of a skilled litigant, the adversary system, whether or not it remains in theory, breaks down, Mr Howard said.

It has already been held that lack of legal representation founded a successful appeal and a new trial on the grounds the appellant did not have a fair trial.

Overseas judges have expressed concern that legal aid cut-backs have meant more and more people are coming to the courts unrepresented both at first instance and on appeal. There are also concerns about vexatious litigants who are perceived to be irrational when they commence or defend litigation, he said.

In the case Cachia v Hanes, Mason CJ commented; " While the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognise that the presence of litigants in person in increasing numbers is creating a problem for the courts."

If the increasing volume and complexity of legislation is forcing parties into court more frequently in order to clarify their rights and duties under the law and to review the discretions exercised by administrative authories, it is obvious that will increase the number of people seeking redress in the Courts, he said.

Litigants in person can also create serious problems of cost and delay for other parties and that is something the government does not appear to have taken into account.

We strongly believe that a cap in legal aid funding will increase the number of litigants in person in the courts and policy makers need to consider those additional cost/delay problems as well in any legal aid funding cap they may make, Mr Howard said.

In 1996 the Society made a submission to then Minister of Justice, Hon Douglas Graham, suggesting a public defender's office and it is pleasing that suggestion has finally been picked-up, Mr Howard said.

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