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Fair probing – or descent into the arena?

The issue of judicial intervention in light  of the increasing number of cases where parties are unrepresented

Reflects on issues arising from a working party on the extent to which judges hearing civil and family cases should intervene to facilitate a fair hearing where one or both parties are unrepresented.  The perceived distinction between court and tribunal approaches may be unhelpful.

Considers the potential advantage of allowing a party acting for themselves to be heard, reading out their submissions on points of law, where a Judge may need to be patient, as interruption to probe the legal submissions is likely to be of little value.  Likewise, in fact-finding, the judicial role should be one of enabling a litigant to participate by telling their story.   Short, easily comprehensible open questions may facilitate this.

A judge who has prepared well, with a good factual command of the papers can more easily intervene yet retain their neutrality.  A ‘one size fits all’ approach to the problem of when and how to intervene is not the solution.  However, a key factor is sufficient judicial time to prepare the case papers properly, including time for legal research, as well as sufficient time for hearings, which will inevitably be longer than where parties are well represented.