LIC & the Litigants in Person in NI Project
Exploring the common ground between the work of the LIC and the Litigants in Person in Northern Ireland (LIPNI) Project, we find the unifying characteristics of applying creative approaches to problem solving and harnessing the use of technology, each in pursuit of improving access to justice. The LIC supported the LIPNI Project in the creation of the Pathfinder Tool mentioned below in the project description, and continues to support it in phase 3 with the roll out of another human-centred design process.
The LIPNI Project, led by PI Prof Gráinne McKeever, explores legal participation as a key component of the right to a fair trial. Legal participation relates to using legal means to pursue a legal claim in such a way as to be able to influence the outcome of the case. We might expect that litigants participate best when represented by a trained lawyer who can navigate the processes, legal arguments, etiquette and protocols of a court case, yet not all litigants have legal representation.
In the civil and family justice system, there is no automatic right of representation, making litigating without a lawyer permissible and accepted. We refer to those who represent themselves in court as 'litigants in person' (or LIPs). Yet, the system is designed in the main for two fully represented parties in a case. This means there can be shortfalls in how LIPs are accommodated and accepted in the litigation process.
Without the services of an effective and practiced advocate, a LIP may flounder and instead experience barriers blocking their legal participation. If a LIP is not able to participate effectively, they will struggle to articulate the issues relevant to their case. This limits their ability to influence the outcome and makes it more difficult for judges to arrive at an informed and fair judgment.
Phase 1 of LIPNI (2016 – 2018) identified four main barriers to how LIPs participate in their cases, and highlighted the need for cultural change to normalise the presence of LIPs in the court system and for the availability of information on how to run a case. Phase 2 of LIPNI (2019 – 2023) adopted research methods unfamiliar in legal research to address these two priorities.
Human-centred design (HCD), familiar in user experience and other design fields, was used to determine whether this method could create empathy between court system users and providers to break down the negative attitudinal barrier and bring about cultural change. At the same time, the outcome of the design process was aimed at co-producing some form of support for assisting LIPs. HCD is a highly participatory method where the needs and characteristics of the users who will use the product or system drive the design process.
A Design Group of people who were or had been LIPs or had professional experience of proceedings involving LIPs worked together and ultimately decided on an information website and an online navigation tool as their preferred supports. This co-production experience generated empathy between the LIPs and other stakeholders in the group, successfully countering negative attitudes. However, the study could not determine whether this attitude change would prevail.
The HCD process led to Design Group to select an information website and an online navigation tool as supports to assist people undergoing family breakdown and seeking information. The research team wrote and built the website - Family Court Information in Northern Ireland - as a practical and accessible solution to the lack of available information about litigating in person. The navigation tool - Pathfinder Tool - was developed with the support of the Legal Innovation Centre as a guided pathway using conditional logic that presents users with options in dialogue boxes based on their circumstances. There are dozens of separate pathways, each of which ends in further information pertinent to that navigated path. The Pathfinder Tool is available both on the Family Court Information in NI website or as a downloadable app.
The idea for the Pathfinder Tool and the website came about through the collaborative design process, discussion and exploration of what a court-user may need. Neither had been planned for by the research team beforehand. The multiple perspectives from both lived and professional experience, and approaching the problem through the lens of LIPs struggling in the system yielded dozens of ideas, but sifting to the top were a navigation tool and website.
The website and Pathfinder Tool complement each other in that the website provides a detailed reference point holding a huge amount of information about litigating in person and the Pathfinder offers a surgical route to a specific information need.
A separate research avenue explored in Phase 2 was the nature of legal participation itself to make it more tangible and identifiable for all court actors. An absence of legal participation may result in a breach of the right to a fair trial (Article 6, ECHR), so a description of legal participation in vivo was developed to help identify how legal participation can be protected during the life of a case. Another research method unfamiliar in legal research was adopted – Q methodology. Q-methodology uses factor analysis and qualitative analysis to examine patterns of opinion on a particular topic, exploring perspectives and identifying commonalities and differences in viewpoints. It originates from psychology but has been adopted in dozens of disparate fields of study to examine subjectivity, from art appreciation to youth service provision.
This methodology was used to understand the subjective points of view of stakeholders of the justice system (LIPs, judges, lawyers, those who provide informal assistance to LIPs, known as McKenzie Friends, and court officials) and to validate an empirical analysis of legal participation against a doctrinal analysis of legal participation in ECtHR case law on Article 6 ECHR right to a fair trial. This produced ten descriptors of legal participation which can act as an aide memoire for judges and court officials to be vigilant of the potential barriers to legal participation LIPs may face.
Phase 3 of LIPNI continues without the support of The Nuffield Foundation, the funder of the first two phases, and works to implement other recommendations from Phase 1 and 2, in particular to bring about cultural change and improve access to justice. A further HCD process will take place in the autumn of 2024 with the Law Society of NI and LIPs to develop a set of guidelines for lawyers and litigants, both represented and unrepresented, on what to expect from each other.
In addition, the researchers will hold an awareness raising workshop on legal participation with judges of the Office of Industrial Tribunals & Fair Employment Tribunals. The web resources will be maintained and updated by the researchers until 2025 when they are due to be taken over by the Department of Justice.