A helping hand

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Timothy Fancourt QC and Penelope Reed QC explain how the Chancery Bar Association is helping to improve the litigant-in-person experience, a key focus of the Chancery Modernisation Review.

The drastic cuts in legal aid funding and the inexorable rise in the cost of everything in London (lawyers’ fees for substantial litigation being apparently no exception) mean that more and more people are having to represent themselves in court. Even in a finance, business and property court like the Chancery Division. And as a result, more and more litigants in person have serious cases to argue.


The lucky ones among them who have an arguable case but do not have the resources to pay for lawyers will obtain free representation through the Bar Pro Bono Unit. Many barristers already generously contribute their time for free in support of the Unit’s work. But since the Legal Aid, Sentencing and Punishment of Offenders Act cuts came into force in April 2013, applications to the Unit have increased by more than 72% year on year. Applications for assistance from the Unit take a few weeks to process and assess, and the ability of the Unit to provide emergency assistance is limited.

The Chancery Bar Litigant in Person Support Scheme

There was therefore an obvious need for further assistance for litigants in person facing, or needing to make, urgent applications for interim relief. In the summer of 2013, a scheme to assist litigants in person with interim applications was piloted in the Queen’s Bench (QB) Division. The work to set up that

scheme was done by the Access to Justice Foundation and the Civil Justice Council, and was supported by the Bar Pro Bono Unit, LawWorks and the Personal Support Unit, with Robin Knowles CBE QC taking the lead in driving the project forward.

At the same time, Mr Justice Briggs, as he then was, made it known to his advisory group on the Chancery Modernisation Review that improving service to litigants in person would be a main focus of his work. He encouraged the Chancery Bar Association to set up a support scheme to operate in the Chancery Division Applications Court.

Although the Chancery scheme is different from the QB scheme, we were very pleased that it is able to operate administratively through the RCJ Advice Bureau, in much the same way that the QB scheme operates, with the administrative resources of that Bureau and its expertise in dealing with litigants in person accordingly available to support the Chancery scheme.

For the avoidance of doubt, although the scheme is administered by the RCJ Advice Bureau, barristers who volunteer to act under it are deemed to be professionally instructed by the Bar Pro Bono Unit, under the licensed access regime; there is no need for a barrister to be registered with the Bar Standards Board for public access work in order to volunteer. The licensed access instructions only cover the barrister to the extent that he or she acts under the CLIPS scheme, however, not in other courts or for follow-up work.

A CLIPS day in the life

The scheme operates by way of a monthly rota operated on Doodle software: there are two volunteer places for each day on which applications are heard, at present only during term time. Individuals and chambers who have expressed interest are sent the rota each month, and the point of contact in chambers (usually a clerk) then forwards the rota to members of chambers. To volunteer, a barrister simply asks the clerk to make a booking for a specific day. Some are happy to do so well in advance; others do so at a late stage, when a case settles and a vacancy exists. We are very pleased to have both types of volunteer.

There is usually no need to do anything before 10am on the day in question. The Applications Court usher hands the volunteers the Chancery Bar Association’s file of useful materials at 10am. This includes the rules of the scheme, detailed Q&As, lists of declared vexatious litigants, a directory of judges’ clerks’ internal phone numbers and guidance on other issues. It also includes the key to Room 18, a consultation room outside Court 10 dedicated to CLIPS, in which there is wireless internet access, telephone, a printer/photocopier and further useful legal materials, forms etc.

The usher will refer any litigants in person who identify themselves, but at 10.30am the volunteer will go into court regardless, in case others appear. The judges are clear that there is no requirement on the litigants to accept the assistance of the volunteer.

Some do and some don’t wish to do so (some have had bad experiences with lawyers before and prefer to go their own way). The judges try so far as possible to allow the volunteer and the litigant time to consider the application before it is heard.

There is no question of the volunteer being expected to do the same job that he or she would have done if professionally briefed the day before, nor is the volunteer expected to have expert knowledge of all areas. He or she is there to try to make a difference in terms of giving general advice and, to the extent possible, helping the litigant to present his or her case to the court. The fundamental rule of professional conduct that a barrister must not act outside his or her competence still applies, and if the volunteer is out of his or her depth the litigant must be referred back to the RCJ Advice Bureau, or if appropriate the Personal Support Unit, for further assistance.

The early weeks

CLIPS started operating in the week before the Christmas vacation. The first volunteers for the scheme were the authors of this piece and other officers and members of the Chancery Bar Association committee, together with a few dragooned others. One of the concerns had been whether the scheme would really be needed. It was immediately apparent that it was. Day one saw one litigant, by day two there were four, and by the end of the week no fewer than 10 litigants in person had received assistance.

After Christmas the rota started to operate in earnest with two volunteers on most days. Experience has proved that volunteers are able to provide the litigants with a range of help. Sometimes it is clear that they wish to make an application which is not urgent and in respect of which they need advice and help. In such a case a referral to the RCJ Advice Bureau may be appropriate.

In other cases representation may be required. Sometimes the volunteer is able to do all the advocacy; occasionally he or she can undertake some of it while the litigant in person deals with other points. One issue which has arisen but which was not anticipated is that conflicts can arise. If there are two volunteers, they have to be alive to the fact that they may end up representing litigants on opposing sides.

In less than three months this has happened twice.

The volunteer experience

The feedback from the judges has been effusive. Our members have also reported very positive experiences: they are appearing in front of a tribunal inclined to be amenable and very grateful. However, it is also an efficient way of undertaking pro bono work; the commitment is no more than a day at a time and often our members are back in chambers by mid-morning (though remaining on call for the rest of the day).

CLIPS also offers junior members experience of the applications court, which nowadays they do not always get as part of their practice. For more senior members, it provides the opportunity to remind High Court judges who they are and to get into court.

The success of the scheme depends on the willingness of our members to give up their time for free to volunteer. So far, when there has been a gap in the rota, a call for help in our newsletter has filled the vacancy within minutes.

Wider need

CLIPS and the Court 37 QB scheme on which it was in part modelled demonstrate the need for such schemes to be provided more widely. We have seen litigants who have matters in other courts not covered by CLIPS turn up for assistance at Room 18 on a regular basis. We understand that regional schemes are being prepared, and the CLIPS scheme is to be extended to cover applications days in Central London County Court when it moves to the Royal Courts of Justice this month.

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Timothy Fancourt QC

Timothy is the Chairman of the Chancery Bar Association and a Recorder and Deputy High Court Judge. He practises from Falcon Chambers, specialising in all aspects of property litigation.

Penelope Reed QC

Penelope is Vice Chair of the Chancery Bar Association and practises mainly in trusts, wills and estates from 5 Stone Buildings. She is a Recorder and Deputy High Court Judge.