Why do cases come to court?
In an effort to answer this question, The Ministry of Justice commissioned Ipsos UK to conduct research into the attitudes, knowledge and experiences of individuals and small to medium size enterprises (SMEs) which have brought cases to the civil and family courts.
The findings of that study have now been published and for those of us who work daily within the court system, the findings come as no great surprise.
Key findings as to the factors influencing decisions to go to court were:
- Across both family and civil cases, emotional motivations played an important role in influencing decisions to take a case to court. The term ‘emotional’ is used as a broad term in this context to convey motivations that were informed by how participants felt about their situation and their emotional responses to any needs and wants associated with their case. These emotional motivations were typically characterised by the desire for justice, the desire for recognition about the validity of the case, desire to share their personal experience, and the desire for emotional closure on a complex issue or traumatic experience.
- Many participants involved in this study, across both civil and family cases, reported that they had tried to resolve their cases outside of court, with court typically seen as the last resort among these court users.
- Participants often reported that alternatives to resolving their issue outside of court, such as informal negotiations, telephone calls and sending letters were time consuming and could be expensive, both in terms of direct costs and indirect costs (e.g. cost of adding additional time to the overall timeline of resolving their case). Many felt that they would have been better off starting court proceedings earlier, as their attempts at resolving the issue via alternatives to court were unsuccessful and, in their view, slowed down the overall process. The minority who explored mediation, mostly in family cases, had mixed views on the impact of the experience, with some reporting a lack of engagement from the other party and perceiving these unsuccessful attempts at mediation as adding additional cost and time to the court process in their case.
- The affordability of legal representation was a key issue for participants in both civil and family cases. As such, seeking pro bono advice and accessing legal aid played a key role in enabling participants to access legal advice and representation for those who were otherwise unable to pay for it themselves. For some, this led them to litigate in person as they did not have the resources to pay for legal representation.
- Court fees played a small role in decision-making for most participants involved in this research, although there was some variation depending on the type of case and court user. Typical in family cases is a £593 fee to file a divorce petition, £275 to file financial proceedings and £232 to file an application involving child arrangements.
- The overall costs, including legal fees and other costs, were for most far more important in terms of decision-making. However, many participants reflected that the issue they were seeking to resolve was so important that they would have found a means by which to pay the overall cost regardless.
- Participants had mixed experiences of going to court. Across both civil and family cases, participants reported varying levels of knowledge about the court process. Participants who received legal advice or legal representation tended to have a better awareness about the court process and their perceived capability to manage it by virtue of being represented. Those who litigated in person, particularly those who did so because they could not afford to pay for legal representation, typically reported higher levels of uncertainty about the process.
- A big key point from the research – regardless of representation status, many reported underestimating how emotionally demanding the court case would be. For some, this was due to the reality of the experience differing to their expectations. Participants reflected that more guidance on logistics of what to expect in court hearings (e.g., layout of the court room, what they should wear, and realistic timings) would have helped them manage their expectations and may have led them to making more well-informed decisions during their case.
Court applications should always be seen as a last resort but sometimes are a necessity. For anyone involved in a family breakdown who is considering court action, it is important to get independent legal advice prior to issuing.
Our team at Barker Gotelee can offer a fixed price initial consultation to go through all options available. Contact us for more information.
Further information about the research can be accessed here.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Ipswich.