Lawyers’ Perspectives on the Impacts of Self-Representation in Civil Proceedings in Hong Kong

Document Type

Article

Publication Date

2007

Keywords

Self-Representation, Civil Proceedings, High Court of Hong Kong, Systematic Information

Abstract

The issue of self-representation in civil proceedings in the High Court of Hong Kong has generated much discussion, debate and concern. Anecdotal evidence indicates that litigants in person have appeared in increasing numbers in Hong Kong (Chief Justice's Working Party on Civil Justice Reform, 2001, 2004). The Daily Cause List for the High Court (the timetable of cases heard in the courtrooms) indicates the frequent appearance of litigants in person. This observation is in line with other common law jurisdictions that have similarly experienced a growth in self-representation in civil proceedings (see, for example, Callaway, 2002; Greacen, 2002; Goldschmidt, 2002; Hannaford-Agor & Mott, 2003; Law Council of Australia, 2004; Alberta Law Reform Institute, 2005). For instance, Australian data has confirmed an increase in numbers of self-represented litigants in the High Court, Family Court and Federal Court between 1992 and 2002 (Law Council of Australia, 2004: 12). Robertson and Corbin (2005, p. 122) comment that “[t]his is apparently an era in which do-it-yourself lawyering is on the rise. Courts in many jurisdictions are witnessing a steady increase in the numbers of self-represented litigants”. While Lord Justice Otton (1995) found that there had been an increase in party litigants in the English High Court and in the Court of Appeal (also cited in Applebey,1997), Moorhead and Sefton (2005) later found little evidence of a dramatic increase in self-represented litigants in the four courts in first instance civil and family cases, excluding small claims cases. However, Moorhead and Sefton (2005) reported that the situation was unclear in the family courts. In the Hong Kong context, although there is little systematic information available about litigants in person in the civil justice system, there is a general impression that the number is increasing (Cameron & Kelly, 2002). Recent case statistics confirm this impression. In two three-week periods in 2006, a review of the Daily Cause List for the High Court showed that just under half the cases listed for hearing involved at least one litigant in person. It is beyond the scope of this paper to quantify the objective fact. The present study, which is part of a larger study of the impacts of self-representation, examines the perspectives of lawyers for represented parties about the challenges raised by the participation of litigants in person in civil cases in the High Court of Hong Kong.

This paper has four sections. The first section will discuss the circumstances that led to the initiation of the ‘Litigants in Person Project’ in Hong Kong. The second section outlines the qualitative method used in this study to examine the impacts of self-representation on lawyers in Hong Kong. The third section reports upon the findings generated from 25 interviews with solicitors and barristers. The final section analyses the interview data. It begins by briefly reviewing the literature that has distinguished between different types of representation status and that has considered the varying impacts of self-representation on judges and court staff depending on whether all parties are self-represented or some are self-represented and some are legally represented. It then situates the results of the present study in that context by considering the same sub-set of self-representation cases—some parties are represented by lawyers and some are self-represented—from the perspective of lawyers for represented parties.

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