Litigants going it alone because of free legal aid cuts

High costs and debt burdens see a growing number of people ditch the legal experts and fight their own case, finds Mick Clifford.

ALMOST one third of the cases in the Court of Appeal are run by lay litigants, according to the Courts Service. The figure illustrates how frequently litigants are representing themselves and not hiring legal counsel.

There are a number of reasons for this increase. The most obvious is cost. Since the recession, the volume of litigation, in relation to economic matters, has ballooned. Debt and dispute over debt have become big business in the courts.

For many, the prospect of further debt — by having to pay legal costs — is too much. They go it alone. This risks an unfair fight, with one side — more often than not a company or institution — being represented by experienced counsel, familiar with the law and courts, and the other a litigant who is a novice to both. Yet, some see little choice in the matter and plough on.

Apart from the financial hardship it inflicted, the other impact of the recession is that far more people are now economically literate, and often, by extension, more informed about the law. People decide to literally take the law into their hands by battling the system.

Another reason litigants are going it alone are cuts to free legal aid. The scheme is for those whose resources are such that they can’t afford to go to court.

But it has been subjected to the same cutbacks as all other spending in the State, and so fewer people have access to it than was the case prior to the recession. Those who can’t access free legal aid are left to their own devices.

There is no breakdown on the kind of cases being taken by lay litigants, but many are associated with the fall-out from the construction boom and the recession.

The two cases featured on this page are of a more traditional variety, and offer differing perspectives on how well a lay litigant can run a case.

Another traditional area for lay litigants is family law. According to one lawyer, parties sometimes use the courts more for purposes to do with the relationship than with obtaining legal remedy.

“There are times when some people, men in particular, run their own case in order to question their spouse,” he says. “Often, this is because they simply can’t come to terms with the fact that the relationship is over.”

FOR those who do decide on the DIY option, there is help. The Free Legal Advice Centre runs a network of evening meetings, where people can ask questions about the basic elements of attending court and presenting a case.

The centre also has a series of short videos on how to dress appropriately, a run though court documents, and an outline of the court system.

All of these matters can be daunting to somebody who represents themselves.

Apart from potential cost, lay litigants sometimes act alone because legal representatives have advised them that they don’t have a case.

Few solicitors or barristers will take on a case knowing that it will lose and that they will have next to no chance of recovering any costs for it.

Michael Murphy Jnr: Fought a lengthy battle in the Supreme Court to clear his family’s name.

This was mentioned in a ruling in the Stephen Murphy case, delivered by judge Peter Charlton, who was speaking generally, rather than referencing the case at hand.

“Often, people feel aggrieved by some real or perceived personal wrong, and added to that is the conviction that the administrative system, or legal structure, of the State has let them down. One characteristic of this is the serial addition of defendants, as wrong allegedly piles upon wrong, which, in some cases, looms as the perception of persecution.”

In such an environment, Judge Charlton pointed out, patience is required by judges to ensure that court proceedings proceed appropriately.

He also suggested that: “It must be remembered that those facing such actions may also have their lives deeply affected by the pursuit of wrongs, where these are either imagined or are not actionable.”

Finally, he also said that while patience would be supplied in abundance, the same could not be expected of the court’s scarce resources.

“Lay litigants are no more entitled to use disproportionate resources from the courts than any professionally represented litigant and while, in that context, case management may usefully be engaged by a judge at an early stage, all litigants are required to state the essence of their case and cannot attract unlimited indulgence.”

Sometimes the law is a Wunder

Issac Wunder’s name entered the legal annals on the basis of a ruling in his case.

In Mr Wunder’s case, it was doubly so, as he was not the first litigant to attract such a ruling.

Back in 1965, a libel action in the case known as Keaveney v Geraghty was set in train, but the High Court found that the proceedings were frivolous.

Following an appeal, the Supreme Court ruled that the proceedings could not be continued again without leave from the court. This effectively acted as a block to a litigant taking a whole variety of proceedings, one after another, in endless pursuit of a preferred outcome, despite practically no chance of success.

A few years later, Dublin man Wunder took a case against the Irish Sweepstakes, over winnings to which he claimed he was entitled. His claims were dismissed as frivolous. He made several claims against the defendant on the matter, each of which he lost, and nearly all of which were ruled as groundless.

In light of his pursuit of the Sweepstakes, the Supreme Court issued an order similar to that in the Keaveney v Gereghty case, and although Mr Wunder was not the first recipient of such an order, his name was the one attached to it thereafter.

The courts, ever-vigilant of at least giving the impression of keeping justice open to all, tend to be reluctant to issue the dreaded Issac Wunder.

Yet, there are inevitably times when judges feel they have no alternative.

One case, in recent years, involved John Burke, from Elmy, Co Tipperary, a farmer who had been accused of numerous instances of animal cruelty. Following proceedings in the District Court, he conducted his own defence in the Circuit Court, and then brought at least seven sets of judicial review proceedings in the High Court.

One of the 19 grounds on which he brought the judicial review proceedings was that the State had failed to compel some witnesses to attend when he represented himself at the Circuit Court. Yet, Judge Mary Irvine found, in the High Court, that he had cross-examined the two State witnesses in the lower court for six-and-a-half and four hours, respectively.

She said that she had come to the conclusion that Mr Burke had managed to “demonstrate that the applicant has not only a seemingly inexhaustible appetite for litigation, which is without merit, but that he harbours a deliberate and sustained intention to thwart the administration of justice”.

On that basis, the judge issued an Issac Wunder.

Apart from his travails in that case, Mr Burke had form in representing himself in court. In 2009, he had brought judicial review proceedings to prevent the government rerunning the referendum on the Lisbon Treaty. He was unsuccessful with that, also.

CASE STUDY: Golf handicap dispute went to Supreme Court

TOM Talbot had been a member of the Hermitage Golf Club for 40 years when the trouble began. He was a retired insurance official, and avid golfer at the club, in Lucan, Co Dublin.

Thomas Talbot, a retired insurance official, leaving after he failed in a High Court action. Picture: Collins Courts

He set about improving his handicap. This is the number of strokes allocated based on ability and means that more shots can be taken to reach the hole than the person’s true level of play would allow.

In July, 2003, the club’s handicap sub-committee sent Mr Talbot a certificate stating his was 13, with the words ‘general play (handicap-building)’ at the bottom of the cert.

Mr Talbot took exception and so began a long road that led to 83 days in the High and Supreme Courts, during which he represented himself against the club.

He claimed the words on the certificate meant that he was cheating at golf and he launched a defamation action on the back of it. The defendants included the Hermitage club, its handicap subcommittee, the chair of the club, and the Golfing Union of Ireland. Subsequently, he claimed other irregularities at the club, which complicated the actions.

Over 20 days in the High Court, Mr Talbot called a number of witnesses and questioned them at length. Some of the witnesses gave evidence that diminished rather than enhanced Mr Talbot’s case, but that didn’t prompt him to revisit his legal strategy.

He told the court that, in 2003 and 2004, the subcommittee had reduced his handicap six times, which he said was unprecedented in the decades he had been at the club.

No other player, he said, had ever been accused of handicap-building.

The Golfing Union of Ireland had carried out an audit at the club and had mistakenly suspended Mr Talbot’s handicap.

All of this emerged over twenty days of what one observer called “torturous” proceedings in the High Court.

The presiding judge, Daniel Herbert ruled that the words “handicap building” were defamatory, and any reasonable and well-informed golfer would fairly conclude that he was being accused of consciously and deliberately inflating his handicap to give himself an unfair advantage in the game by misrepresenting his true playing ability.

However, the judge said, he was also satisfied the words were not published to a third party, which is a requirement for a document to be libellous.

The certificate of his handicap was only addressed to Mr Talbot and contained in a sealed envelope left for him in the men’s competition room.

Justice Herbert’s ruling was delivered on July 27, 2012.

Over the following two years, Mr Talbot made a number of appeals to the Supreme Court, which ultimately ruled against him.

In delivering her ruling, Chief Justice Susan Denham called for better case-management in the courts to avoid so much time and resources being taken up with a case that should have been dealt with more quickly.

Judge Peter Charlton expanded on the point, including the observation that he wasn’t making a criticism of anybody in particular.

“As the Chief Justice points out in her judgment, with which I agree, the delivery of this judgment will constitute the 83rd day that the resources of the High Court and the Supreme Court have been directed towards this claim,” he ruled.

“This was, in essence, a very simple case: was it defamatory to say of an amateur golfer that he was “handicap-building”; was that statement published to anyone other than the maker of the statement and the subject of it; and, if ‘yes’ was the answer to these two questions, was publication on an occasion of qualified privilege not undermined by malice?”

He went on: “The resources of the courts are there for litigants. Those resources are not, however, unlimited. No litigant is entitled to more than what is reasonably and necessarily required for the just disposal of a case, within the context of the other demands on court time.

“Whether it is an unrepresented litigant or not, the resources which the courts decide to assign to a case must depend upon the importance of the legal issues involved; the gravity of the wrong allegedly suffered by the moving or counter-claiming party; the monetary sum involved; and the public interest in the outcome of the case. Courts are entitled, and indeed are required, to foster their resources. This is both a matter of public and private interest.

“Court resources used in litigation are funded by public money. In addition, the parties pay for legal representation.

“Litigants should not be faced with cases that are longer or more expensive than they need to be for a fair resolution.

“In many instances, costs, if awarded against a losing party, may not be recovered. In that regard, putting reasonable limits on submissions, in terms of time, and allowing a measured number of hours or days for each side to litigate their case, is both right and appropriate. The calling of repetitive expert evidence may, and should, also be curtailed.”

The case was one of the most extraordinary taken in the High Court by a lay litigant and costs were awarded against Mr Talbot, which were estimated to be somewhere north of €700,000. Since then, there has been little indication that those costs were recovered.

CASE STUDY: Murphy spent 20 years challenging wrong conviction

Occasionally, a lay litigant takes on the system and actually wins. One such case was completed in the Supreme Court last month, involving a farmer from west Cork.

The Four Courts, Dublin. Prohibitive legal costs deter many litigants.

It started with cow dung on the road and ended twenty years later in the Supreme Court. Along the way, Stephen Murphy learned a lot about the state. Principally, he discovered that once the apparatus of the criminal justice system is directed against you it takes major perseverance to pursue justice all the way to resolution.

Stephen Murphy is from Drimoleague in west Cork. He still lives today in the home in which he was reared, but in June 1996 there was major trouble in the area. The Murphy family, Stephen, his father Stephen Snr and sister Anne, were, as they saw it, being seriously put upon. Two years earlier, their neighbours, John McCarthy and his son Dermot, had reclaimed some land which affected a water source for the Murphys.

Relations between the two households soured. The Murphys harboured a sense of injustice about the prevailing situation. This fed into a dispute over the McCarthys driving their herd of cattle past the Murphy home.

The Murphys claimed that the cows liberally relieved themselves of their dung on the roadway, giving off fumes that caused health issues for the family. The gardai were called a number of times in 1994 and 1995 to deal with the disruption. Then matters came to a head on Thursday 27 June 1996.

At around 8.30am, Dermot McCarthy was driving his herd on the road. He claimed that Stephen Murphy Jnr was en route to work in his car and he used the vehicle to block the cattle, sending them back up the road. Dermot McCarthy phoned a guard he knew, Michael McCarthy, who was no relation, but was known to the McCarthys through horse breeding. Garda McCarthy was off-duty. He passed on the complaint to his colleagues at Bantry station.

An hour later, there was more hassle. Dermot McCarthy later outlined the event in a statement.

“The squad car from Bantry and a Garda Walsh arrived. He went into Murphy’s house and my father and myself turned the cows along the road towards the field.. As the cows went along Stephen Murphy senior and Anne Murphy came out onto the roadway and stopped the cows and were shouting and roaring.

“Garda Walsh asked them to get back and let the cows through. They refused and he asked them several times.”

That evening at 4.30pm, there was more of it. This time it was alleged that “as a result of the excitement the animals fouled the roadway.”

Stephen Murphy Snr was also alleged to have said he’d “get a gun and shoot every one of them if necessary”, an apparent reference to the cows rather than the McCarthys.

Two days later there was a reprise with more confrontation despite the presence of the gardai.

As a result, the three Murphys were charged with a number of public order offences. There was, however, one major problem. Stephen Murphy Jnr was charged with the incidents on June 27 when he wasn’t actually present.

This, it would be discovered years later, was down to a typist’s error. When transcribing written statements, Junior was mistakenly inserted where Senior should have been.

The Murphys were convicted of a whole series of the public order offences in the District court, where they were represented by a solicitor. They appealed to the Circuit court, where a number of the convictions were set aside.

The Murphys were still not happy that some of the convictions stood, and they initiated a judicial review of the decision. In particular, Stephen Jnr was aggrieved that he was still convicted of offences allegedly committed when he wasn’t even present.

“I argued about how I wasn’t there,” he says of his appearance at the Judicial review, where he represented himself. “In the end the DPP ruled that the summons weren’t properly drafted and I won.”

The judicial review result was delivered on 5 March 1998, clearing the Murphys of all but two of the offences. Stephen Snr died the following February.

By then, Stephen Jnr and Anne had decided to initiate a civil action against the state for malicious prosecution. Their case was that the prosecutions against them were motivated by the friendship between Garda Michael McCarthy and the McCarthys.

Anne Murphy also sued for what she claimed was “false imprisonment” arising from being “barricaded inside her house due to the actions of the gardai” on that day.

“I approached solicitors in Cork and none of them were interested,” Murphy says. “They said that as other colleagues had left it they wouldn’t be taking it on. The whole thing was a mess.”

So he decided to read up on the law and represent himself and his sister in court. Years earlier he had studied aspects of the law as a part of an accountancy course, but now he would be taking on the state in the highest courts in the land.

The ruling issued by Judge Charleton last week referred to the challenges of a lay litigant taking on the state.

“Often people feel aggrieved by some real or perceived personal wrong and added to that is the conviction that the administrative system or legal structure of the State has let them down.

“One characteristic of this is the serial addition of defendants as wrong allegedly piles upon wrong, which in some cases looms as the perception of persecution.

“Thus, the job of a judge is; to attempt to dispel the charge of emotion over the facts; to endeavour to find key facts within the characteristic confusion of allegation; to try to find if there is, or ever was, a root cause for the disgruntlement.

There was plenty of emotion in the legal documents submitted by Stephen Murphy. He likened the gardai to the Black and Tans, “Nazi Gestapo” and even “Blue Shirts”. One line of argument forwarded was that the Murphys had been “entrapped in a crime by the defendants”.

Murphy took to the task in earnest. In particular, he went through a long process of discovery, obtaining rosters, the superintendent’s report on the prosecution and correspondence between the force and the old Garda Complaints Board, to which Murphy had earlier made a complaint.

Much of this was to go towards putting together his case based on a claim that Garda McCarthy had acted maliciously against him in aiding his neighbours.

The High Court hearing in 2003 brought little joy. Judge Aindrias O’Caoimh dismissed the action, ruling that the prosecution was not malicious, that it was down to typist’s error.

At that point, many a lay litigant may have thrown in the towel, but the Murphys’ sense of injustice drove the siblings for another thirteen years, all the way through an appeal to the Supreme Court.

The final outcome brought a similar result in legal terms, but the Supreme Court judges had some harsh words for the gardai, whose work was described as “slipshod”.

Referring to the charges brought against Murphy for offences he couldn’t have committed, judge Charleton ruled: “That original conviction should never have happened. Furthermore, there should never have been a recommendation to the district superintendent of the gardai to prosecute him in respect of any such offence…This is not impressive. While there is nothing wrong with the other charges, it is necessary for the gardai to exercise care in the prosecution of citizens.”

However, the judge ruled, that the wrongful prosecution was down to human error rather than malice on the part of anybody.

Judge Frank Clarke, sitting with Judge Charleton and Judge Elizabeth Dunne, said that despite the result, the state should make a “significant” ex gratia payment to the Murphy siblings for what they had been put through it attempting to right a wrong over 20 years.

Normally, having lost the case, the Murphys would be left with paying the costs for the state bodies, but Clarke said any application for such costs by the state would be “treated with severe disdain”.

The Murphys were not happy with the outcome. Outside the court, Anne Murphy referred to “cowboy rule in west Cork”. Later, speaking to the Irish Examiner, Stephen Murphy pointed to the fact that it took him to go to the High and Supreme Court before the typist’s mistake was acknowledged.

“They could have come to me but they fought me twice over it,” he says. “And to this day I’ve never even seen that statement.”

”He doesn’t regard the recommendation that the state make a payment as any major victory.

“I was never looking for money. All I wanted was justice. It maddened me the amount of money they wasted all along the way. It could all have been sorted out a long time ago.”