LiPs Still Fighting Uphill: How Reform Has Fallen Short on Procedural Fairness

Over a decade of reform — yet the deck remains stacked

In public hearings and academic analyses, the increasing number of litigants in person — people navigating the legal system without legal representation — has posed a critical test for justice in England and Wales.

Despite procedural reforms stretching from 2013 to 2024, the voices of those who represent themselves are still echoing in nearly empty chambers. The reforms have not levelled the playing field.

A decade of digital hope and procedural update

In the early 2010s, sweeping changes upended civil justice. The Jackson reforms in 2013 reined in costs, while the small claims jurisdiction increased to £10,000, effectively increasing the number of unrepresented litigants.

In parallel, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed legal aid from vast areas of civil law. The response included CPR 3.1A, introduced in October 2015, instructing judges to calibrate case management with litigants in person in mind and to pursue the overriding objective.

On the employment front, the tide turned sharply in 2017 when Employment Tribunal fees, introduced in 2013, were ruled unlawful. Their existence had restricted access. Even after removal, tribunal efficiency problems offered limited consolation.

Technology then took centre stage. The Online Civil Money Claims service, first capped at £10,000, has since increased to £25,000, positioning digital tools as the answer to barriers faced by non-lawyers. The HMCTS reform programme anticipated that greater digitisation would enhance access.

Reform fatigue: rules and positivity without delivery

Judicial pronouncements and updated guidance confirm that the judiciary acknowledges the difficulties litigants in person face. The Equal Treatment Bench Book, refreshed in July 2024, includes guidance around fair participation in digital hearings and cautions on vulnerability.

However, inclusion in policy does not always translate into consistent practice, especially where resources are thin and training is uneven across courts.

The inequality of arms amid procedural complexity

Procedural barbs sharpen where litigants in person confront seasoned counsel or strategic solicitors.

It begins with the digital divide. Lawyers may use HMCTS portals with professional familiarity, while litigants in person often face technological bottlenecks and limited functionality. The result can be missing directions, filing errors or confusion between case stages — not because the claim lacks merit, but because the claimant lacks digital and procedural literacy.

This gap compounds the emotional and intellectual burdens identified in judicial guidance: litigants in person must deal with legal jargon, courtroom unfamiliarity and stress that can impede coherent advocacy.

Nor are delays innocuous. Post-reform, tribunal caseloads grew, with the draft referring to just under 50,000 cases waiting for hearings by late 2024. For a litigant in person, a year’s delay is more than administration; it corrodes capacity, drains resources and undermines evidence retention.

Underhanded tactics and psychological warfare

Where the system falters, opponents may exploit it. In Employment Tribunals, last-minute evidence bundles or “document dumps” can be deployed to disorient. A 500-page parachute leaves an unrepresented party scrambling.

In civil courts, counsel may use costs threats to induce withdrawal. Many litigants in person accept those threats at face value, unaware that costs orders are exceptional and usually depend on unreasonable conduct.

Similarly, deliberate delays, late disclosure and sketchy bundles can be used as destabilising tactics. The cost of opposing these tactics is steep: litigants in person must not only present their own claim, but also police procedural attacks.

How courts are failing procedural fairness

Reforms such as CPR 3.1A, online access and refreshed Equal Treatment Bench Book guidance risk becoming ceremonial if they are not backed by practical enforcement.

Judges, meant to temper the adversarial imbalance, may not intervene strongly enough. While they may appreciate a litigant in person’s position, they must still apply the same law as everyone else, as emphasised in Barton v Wright Hassall.

That formal label of fairness only works if the system itself is fair. Outcomes suggest it often is not.

One tribunal study cited in the draft exposed that litigants in person consistently struggle with deadlines, forms and disclosure. In the absence of institutional guidance, they are expected to catch up mid-flight. The result is procedural default becoming justice denied.

Procedural weapons: unless orders, strike-outs and costs sanctions

Litigants in person are not powerless, but they need to learn the rules to use them.

The institutional inertia that blindsides reform

Three themes stand out.

Even the best rule, including CPR 3.1A, lacks force if there is no meaningful enforcement mechanism and courts remain under pressure from backlogs and resource constraints.

A call to action for real reform

Conclusion: a justice system still weighted

Despite two decades of reform and digital overhaul, litigants in person remain at a distinct disadvantage. They operate under procedural peril, reacting to concealment, missed deadlines and evidence ambushes.

Every item in the procedural armoury is technically available to them. The difficulty is knowing how to use it and finding the courage and clarity to deploy it under pressure.

From 2013’s cost reforms to 2024’s embrace of equal treatment, the justice system has rewritten parts of the script, but it has not changed the cast. Litigants in person remain the outliers, forced into a fight for which they are rarely prepared.

If we truly believe justice is blind, then the system must become practically indifferent to representation status. Until then, every procedural tool litigants in person learn to use is a stolen gift from a system that still punishes their inexperience — and depends on their resilience.