I. Introduction

This article seeks to understand how we came to acquire some of the dominant beliefs and attitudes we have about self-represented parties, or litigants in person (LiPs) in England.Footnote ⁴ With some important, and generally more recent exceptions, self-represented parties have been frequently described in a negative light, particularly by legal professionals, who have both in the UK and overseas often considered them to be vexatious, time wasting, disturbed, incompetent or a combination of all of the above.Footnote ⁵ This attitude has become even more noticeable in the UK since the passage of the Legal Aid, Sentencing and Punishment of Offenders Act in April 2013 cut legal aid for most civil claims, and sparked concern over the threatened increase of LiPs on the court system.Footnote ⁶ Whilst such criticism is as likely to relate to concern about the impact on the court system as it is to any perceived prejudice towards LiPs, and, whilst there is no doubt that many legal professionals and scholars actively seek ways to improve LiP experiences,Footnote ⁷ this negativity has potential consequences for LiPs when they try to pursue or defend claims. But despite the persistence of these attitudes, no study has ever considered: how did we get here? Were people who represented themselves always considered negatively? Or is this the result of historical changes: if so, when and how? This is the task this article sets out to accomplish. As I will show, pursuing these questions is a distinct task to undertaking a history of self-representation. The term LiP is a modern one and taking this term as synonymous with self-representation fails to consider how important the moment of historical transformation is from a general idea of self-representation to the creation of the LiP as a specific role. To understand how LiPs came to be understood as they are today demands a critical investigation of the creation of the term itself.

This article then, is a study of a particular moment: when the term LiP first appears, and the context in which this takes place.Footnote ⁸ I argue that this moment is a by-product of broader changes taking place in the legal profession and in legal adjudication, culminating in the sweeping Judicature Acts which create the modern superior courts. It begins with the founding of the new county courts in 1847 and ends with the appearance of LiP as a term in case law, and in general parlance, by the 1880s. As I will show, in a remarkably short period of time, these new county courts, theoretically designed to provide greater access to justice for poorer litigants, become infiltrated by legal professionals, who bring in their wake a desire for greater formality of procedure and content, and this makes it harder and harder for individuals to act without lawyers.Footnote ⁹

Blaming “formality” and the “legal profession”, however, for creating the LiP is an oversimplification. Instead I will argue in this article that what happens can best be understood as emblematic of Magali Sarfatt Larson's “professional project” in action.Footnote ¹⁰ Drawing on Larson's framework I will show that the new county courts become a battleground for attorneys to claim their place in a legal profession that actively discriminates between the “higher” calling of the Bar and the “lower” rungs of the rank-and-file practitioners.Footnote ¹¹ This battle is a battle for distinction that takes place through the marking out of legal representatives from laypersons, the normalisation of legal expertise and the attempt to crack down on unqualified representatives.Footnote ¹² It is the attempt to introduce these kinds of distinction into the county courts that creates the LiP. What I will show, then, is that the LiP role is not simply that of self-representation. It is self-representation that occurs, and only occurs, in the context of the latter stages of the professional project. Perversely, this also means that the creation of the term LiP does not indicate the facilitation of lay participation in legal forums; it marks instead the moment when they are displaced.Footnote ¹³

II. A Note on Sources and Scope

It is important to start this article by stating that this is not a history, either of the county courts, or of nineteenth-century changes in legal adjudication.Footnote ¹⁴ Instead, what I attempt to do in this article is narrower: I try to understand what is happening for self-represented parties at the time the county courts are founded and in the following decades, seeking to shed light on how the term LiP came about and how such an individual came to be so looked down upon. However, such a task does necessitate understanding of the pre-existing landscape of self-representation prior to the founding of the county courts, knowledge of the county courts themselves, and understanding of developments in the legal profession.Footnote ¹⁵ I therefore draw on several legal historians whose work is essential in constructing my argument: in particular, Patrick Polden's A History of the County Court of England, Margot C. Finn's The Character of Credit: Personal Debt in English Culture, 1740–1914, H.W. Arthur's Without the Law and the work of Christopher Brooks, especially Lawyers, Litigation and English Society since 1450.Footnote ¹⁶ It is perhaps an irony that to write about people without lawyers, one must spend most of one's time talking about legal professionals. But self-representation only exists as a concept in relation to legal representation, and so they remain indelibly linked.

In addition to the legal historical literature that provides a background to this analysis, this article draws on two primary sources for information about the county courts: first, the House of Commons (HC) and House of Lords (HL) debates that took place around the establishment of these courts, and which took place over a nearly thirty-year period from 1821 until 1849. My research into the HC and HL debates was based on the online searching of the database of Hansard using “county courts” as the key search term.Footnote ¹⁷ I read any debate explicitly mentioning the county courts as a means of understanding the grounds on which the legislation establishing the new courts was introduced.

Secondly, and most importantly, this article draws on the County Courts Chronicle, a publication that was founded with the introduction of the new county courts in 1847 and which continued until 1920.Footnote ¹⁸ The County Courts Chronicle provides court reports, editorials, discussions of relevant legislative and procedural reforms, and letters to the editor from both litigants and lawyers: as such it offers an unmatched insight into debates taking place around the time. The alteration in the Chronicle's style and focus is a useful method of charting the shifts in process relating to the LiP that I seek to identify in this article. As I will show, within a short space of time, the Chronicle goes from being a journalistic, almost gossipy, account of cases, many of which have unrepresented parties, to becoming a distinctly different publication in keeping with the development of the professional project.

It is important to note here, though, that although the County Courts Chronicle is an invaluable resource, I am aware that there is a danger in relying too heavily on it for evidence of what happened in the county courts.Footnote ¹⁹ Even in the first year of its publication, where the number of cases reported was significantly higher than the number reported 10 or 20 years later, this was only ever a fraction of the proceedings actually taking place. What we can do is consider the reporting in the Chronicle as indicative of what was important to the authors (legal professionals) and their audience (largely legal professionals).Footnote ²⁰ The diminishment of cases reported involving self-represented parties in later editions of the Chronicle does not indicate that they disappear (we know that they do not), but it does tell us that they are marginalised from what is perceived to be the “real work” of the courts, or at the very least that they are marginalised from the dominant interests of that publication: that of legal professionals arguing matters of legal interest.Footnote ²¹ It is this marginalisation that I argue to be critical to how the concept of the LiP developed.Footnote ²²

III. The Professional Project

An important theoretical building block for this research is the work of Magali Sarfatt Larson, whose 1977 work The Rise of Professionalism: A Sociological Analysis outlines what Larson terms the “professional project”. For Larson, the professional project is:

Larson's work emphasises the uncrossable gap between lay and law, arguing that this gap is a deliberate consequence of this professional project. In this respect, Larson's work chimes with the scholarship of Pierre Bourdieu, whose 1987 article “The Force of Law: Towards a Sociology of the Juridical Field” establishes this gap as a conceptual framework that reinforces the relative autonomy of the juridical field.Footnote ²⁴ Similar to Bourdieu's idea of habitus, Larson too does not claim that such a project is necessarily a conscious undertaking.Footnote ²⁵ As she notes, when she uses the term: “it does not mean that the goals and strategies pursued by a given group are entirely clear or deliberate … [T]he term ‘project’ emphasises the coherence and consistence that can be discovered ex post facto in a variety of apparently unconnected acts.”Footnote ²⁶ In this respect, this article draws on Larson to illuminate retrospective developments but does not suggest that there is a simple, structuralist account of such complex changes. Ultimately, long-term alterations in practice come down to a complex web of individual behaviour shaped by social belief and education, such as is illuminated by the scholarship and contemporary accounts of commentators, legal historians and those who study the legal profession.Footnote ²⁷ However, what makes Larson's work of particular value is her attention to how the dual goals of the professional project – consisting of both monopolisation of the market and the attainment of social status – develop. Laying out the historical development of professions, Larson traces the way in which professions emerge in the nineteenth century in a political and economic context marked by the emergence of new markets and the movement of rural populations towards urban centres. As she notes, “the modern model of profession emerges as a necessary response of professional producers to new opportunities for earning an income”.Footnote ²⁸

Larson argues that critical to the development of a profession is attention to standardisation of practice, the development of a “cognitive commonality”, and the move to eliminating any competition from unregulated actors. All of these tendencies are oriented towards the ultimate goal, which is the social distancing of these professionals from non-professionals, and the consequent status that arises from this distinction.Footnote ²⁹ I draw on Larson's work to argue that much of the difficulties that LiPs experience is a by-product of this professional project. Seen through the lens of the professional project, LiPs are not simply laypersons. Instead they are also individuals who are not appropriately educated, regulated, licenced or trained to be taking on legal work. This analysis opens up another possibility as to why LiPs are talked about pejoratively. This is not only because they are deemed insufficiently competent, but because their growing presence constitutes a threat towards the monopoly of the legal profession.

Finally, it is important to nuance Larson's framework with close attention to the specificities of nineteenth-century legal practitioners. For this purpose, the work of Christopher Brooks is essential. As Brooks persuasively argues, rather than seeing the nineteenth century as a time of the “rise of professions”, the specific case of the law might better be described as a reprofessionalisation that takes place during the nineteenth century after a significant period of decline in the seventeenth and eighteenth centuries. As Brooks notes, this earlier period was marked by a significant decline in practitioners as well as a falling off of standardisation of methods of admission to the profession. Brooks argues that it is therefore not clear that lawyers map on to what “might be called a classical agenda of ‘professionalisation’”. For Brooks, the risk of applying contemporary theories of professionalisation, such as Larson's model, is that of anachronism. Instead he suggests that:

I would argue, however, that it is possible to take into account Brooks's caution without having to dismiss Larson. It is clearly essential to be careful about any overarching or simplistic claims that obscure the diversity of those practising within the profession. However, this does not stop a framework of professionalism being useful for charting developments that affect self-represented parties without falling into anachronism. As such, I will draw on Brooks's and other historians’ research on the legal profession throughout this work to qualify Larson's thesis.

IV. Before 1847: Self-Representation in Civil Proceedings

The presence of self-represented parties in civil proceedings is a long-standing feature of English legal history.Footnote ³¹ As Paul Brand notes: “England before the middle of the twelfth century was a country without professional lawyers largely because there was little for them to be expert about.”Footnote ³² Prior to the emergence of the legal profession, litigants brought their suits in person. The introduction of specialised King's Justices and tribunals created the initial need for specialists. From the thirteenth century onwards, the courts used a writ system that required legal experts to advise litigants as to which of the recognised causes for action inhered in their particular case; whilst the details were recorded orally from the litigant, it was then written down by the clerks of Chancery.Footnote ³³ There were also professional pleaders who presented the case in court.Footnote ³⁴ The superior courts were therefore dominated by legal representatives from a very early point, as they relied on expertise in substantive issues and pleading.Footnote ³⁵ Once representatives were involved, their involvement raised the costs of appearance, thus excluding many individuals who could not afford to hire representatives.Footnote ³⁶ It was, simply, probably not a practical option to pursue matters in these courts unless one had money to spend, and potentially to lose. It is therefore misleading to suggest that legal representation ends any individual's ability to self-represent. Even before lawyers, this ability was already largely limited to those with resources.Footnote ³⁷

It is apparent, then, that the courts at Westminster were inaccessible to laypersons from an early stage. But these were not the only courts in pre-nineteenth-century England. Self-representation continued to flourish in other courts and tribunals, such as the Anglo-Saxon derived hundred courts and the manorial courts, alongside a host of specialised tribunals that existed throughout England and Wales well into the nineteenth century.Footnote ³⁸ Several factors help explain why self-representation continued in these courts: first, many of these courts and tribunals remained primarily oral with individuals able to attend and give their complaints on the day. This meant that disputes were resolved quickly, and also meant that, with no elaborate writ system, literacy was not necessary.Footnote ³⁹ Secondly, there was no need for legal expertise as adjudication was not necessarily bound by precedent, and there were no superior courts to which these courts had to answer.Footnote ⁴⁰ Finally, these courts were held locally, making them not only more physically accessible to those who could not travel to London, but also tribunals that could dispense a kind of communal justice that the Westminster courts could not.Footnote ⁴¹

This is obviously a simplified overview of diverse and complex tribunals. But I provide this narrative to draw out two important points for this article. First, it is inaccurate to claim that self-representation becomes impossible only in the nineteenth century. Self-representation always required facilitation by certain factors to be effective: proceedings that are oral, and forms of adjudication that do not rely on knowledge of legal doctrine. It is when litigants lose access to these kinds of proceedings that self-representation becomes more difficult. Secondly, understanding that England is a landscape of multiple courts and tribunals in the mid-nineteenth century helps to understand the impact of the County Courts Act 1846. This is because this Act does not simply create a new court for litigants; it replaces another one – the courts of requests.

V. The County Courts and the Courts of Requests

The County Courts Act 1846 came into force in 1847. This Bill, which was debated, drafted and redrafted over a nearly thirty-year period,Footnote ⁴² did not create county courts, which in fact already existed, but was intended to reform them in order to provide an accessible and inexpensive forum for pursuing small debts.Footnote ⁴³ The superior courts were accessible only to the wealthy, required legal representation, and were criticised for their “dilatory” proceedings. Joseph Parkes, writing about his own experience of the Warwick Assizes of 1827, says: “I brought an action for £25. It was defended; six witnesses, besides the respective attorneys and parties, attended five days: I obtained a verdict: my costs to the defendant were £66, and probably his own costs due to his attorney would be an additional sum of £50; thus the original debt in dispute was more than quadrupled.”Footnote ⁴⁴ In addition, by the 1300s, the superior courts were applying a rule that they would not give judgment for damages under 40s., and this amount remained in place by the 1800s.Footnote ⁴⁵ Although the relative value had decreased markedly, meaning 40s. was less than 500 years ago, it still amounted to more than a trivial sum in the nineteenth century. The fact that a suit's importance was formally determined by how much financially was at stake, barring it from the superior courts was criticised by Jeremy Bentham, among others: “What to one man may be trivial, to another may be of high importance. In pecuniary cases, the smaller the sum in dispute the less reserve is used in branding the conduct of parties with the charge of litigation, of which, in such cases, the reproach is apt to fall principally, if not exclusively, to the plaintiffs share.”Footnote ⁴⁶ As Bentham, and other contemporary commentators, including Sir Robert Peel, Viscount Althorp and Lord Falconer, argued, the arbitrary corollary between financial value and merit misrepresented what the value of the suit may be for the individual bringing it.Footnote ⁴⁷

This statute meant that any suits of lesser value had to be pursued in the lower courts. And the existing county courts were considered by many to be as bad as the superior courts. These courts shared the charges of delay and expense levelled at the superior courts, but were also regularly accused of corruption and criticised for their infrequency.Footnote ⁴⁸ John Smith, in an early HC debate on county court reform:

Politicians and jurists, then, proposed the county court legislation ostensibly as a means of extending justice to poorer litigants, and as an explicit reaction to the inaccessibility of the current courts.Footnote ⁵⁰ However, although there were altruistic motives involved, the legislation was less about giving access to justice for poorer litigants than allowing tradesmen to pursue poorer individuals for debts.Footnote ⁵¹ Most importantly, the implication of comments made by figures such as Lord Falconer is that the Act was needed to provide courts where there were no courts before, or only the bad old county courts.Footnote ⁵² But this assumption ignores the courts of requests.

Courts of requests were courts where cases were decided locally according to “equity and good conscience”. As Shaunnagh Dorset points out this means that such a court was:

As Margot Finn argues, courts of requests practice was one of “equitable reasoning”. This equitable reasoning “referred less to the formal practices of the central court of Chancery, than to tempering the strict letter of the law by taking account of particularistic, mitigating personal circumstances”.Footnote ⁵⁴ Each court of requests was a separate entity created by local municipal statute.Footnote ⁵⁵ The cases in question in these courts were usually small and the procedures were relatively simple, and parties could testify in person.Footnote ⁵⁶ The courts of requests were also popular. By 1847, these courts existed in over four hundred locations and dealt with several hundred thousand suits annually, with the “defendants derived overwhelmingly from the lower and working classes”.Footnote ⁵⁷ This was where the majority of small debts claims were made, alongside a host of other kinds of minor disputes. As H.W. Arthurs puts it: “It is hardly an overstatement to say that, for most Englishmen of the period, the local Court of Request dispensed the only form of civil justice they would ever know.”Footnote ⁵⁸ Far from there being no forum for litigants pursuing small claims, there were courts already operating that were successful.Footnote ⁵⁹

So why do the drafters of the County Courts Act 1846 argue that the new county court is needed? One explanation is that the courts of requests were no place for those who considered themselves members of the legal profession.Footnote ⁶⁰ As a Chronicle correspondent would note later: “Courts of request were bear gardens in noise and confusion, and their character was at the lowest ebb.”Footnote ⁶¹ While there is some evidence of attorneys involved in the courts of requests, such individuals were looked down on as debasing the reputation of the profession.Footnote ⁶² Courts of requests do occasionally appear in the HC debates about the new county courts, but are not depicted in a flattering light. Lord Brougham expresses a typical attitude here: “It happens that tradesmen, who know nothing of law, and who may not have much occupation in their own business, preside in these Courts of Request, and administer justice as well as might be expected. I say it is better to have these courts and these judges than to have none.”Footnote ⁶³ So, while the courts of requests were considered to serve a purpose while there was no better alternative, they were generally considered beneath the dignity of the profession.Footnote ⁶⁴

But another, more persuasive explanation for why the courts of requests are replaced, can be found through examining the criticism in closer detail. Such criticism demonstrates that, for many in the legal profession, the courts of requests were not just undignified, they were not courts at all. The language of the criticism evidences this: these courts were, as above, described as “bear gardens”.Footnote ⁶⁵ Other commentators refer to them as “but tribunals”.Footnote ⁶⁶ Such language is more than a character assessment: it is a policing of boundaries, symptomatic of what John Griffiths identified as “legal centralism”. Griffiths defines legal centralism as the idea that: “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions.”Footnote ⁶⁷ Courts and tribunals operating outside of the auspices of this central administration are therefore not real courts. But legal centralism is a claim, not a fact. As Marc Galanter comments in his article on indigenous law and legal pluralism: “Just as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice-dispensing institutions.”Footnote ⁶⁸

Following Griffiths and Galanter, the County Courts Act 1846 can be read as an ideological claim to a specific kind of justice – a justice that can only be found via the legal profession. The statute's preamble explicitly states that: “it is expedient that the Provisions of such Acts should be amended, and that One Rule and Manner of proceeding for the Recovery of Small Debts and Demands should prevail throughout England.”Footnote ⁶⁹ As such, the County Courts Act is more than simple reform: it is part of a wider thrust of legal centralisation taking place throughout the nineteenth century, dismantling unregulated courts and transforming them into new areas of practice for the profession.Footnote ⁷⁰

The County Courts Act, then, is drafted to provide proper courts for poorer litigants. These new courts will be overseen, and ideally frequented, by legal professionals.Footnote ⁷¹ As Patrick Polden states: “from the point of view of the profession … it was imperative that the county courts should be established on a basis that would give lawyers access to a lucrative new area of practice.”Footnote ⁷² Here we see the mix of altruism and self-interest that largely characterises these developments. So, while it would be overstating to say that the new county court was established purely in the pursuit of a professional monopoly, it would be naïve to believe that this was not also a factor in its development.Footnote ⁷³ In keeping with Bourdieu's sociological theory, instead, we can see these two motives are entirely blended. It is not the case that the legal profession want a monopoly of the new courts purely out of self-interest.Footnote ⁷⁴ Instead, they genuinely believe that their presence will serve the ends of justice.Footnote ⁷⁵ This attitude is exemplified in this County Courts Chronicle editorial in the year the Bill passed: “There is undoubtedly an inclination at present to stand aloof from the County Courts – to look upon the practices as low, and to leave it to the lowest grade of practitioners … But this is a grievous mistake, and if persisted in will be seriously injurious both to the Courts and to the Profession.”Footnote ⁷⁶

The implicit argument here is that the presence of legal professionals is necessary in these new courts, because their presence will transform the proceedings from “bear gardens” into real courts.

VI. An Occupational Hierarchy

At this point it is far too simplistic to keep referring to the “legal profession” as a monolithic group, particularly if we want to understand what happens in the county courts and how it affects self-represented parties. This is because the legal profession, like any other profession, has its own occupational hierarchy. More than that, the status of the law as one of the “older professions” means that its professional structures were developed earlier than that of many other professions.Footnote ⁷⁷ While it is important not to get lost in these histories, it is essential to note the gap between members of the profession who practised at the Bar and those who occupied a lower status in the profession – the rank-and-file attorneys and solicitors. While such divisions persist in different forms today, these divisions historically cut deeper. They were indicative of a distinct class difference: those admitted to the Bar came from loftier backgrounds, compared with attorneys and solicitors who were from humbler origins.Footnote ⁷⁸ In the pre-nineteenth century, this division denoted the difference between practitioners at the Bar who were considered “gentleman”, and those who were seen by the Bar as merely working for money.Footnote ⁷⁹

This was of course not the case for attorneys who lacked these social privileges and who were dependent on a steady income to survive. But the late-eighteenth and early-nineteenth century was a time of radical changes: new markets opened up in new urban centres, and the class structure of the whole country changed with it, from one structured on landowners and peasants, to one centred around the market.Footnote ⁸⁰ The consequences for the legal profession of these changes are significant. While up until this point, the Bar had thrived on a pre-nineteenth-century guild-like exclusivity, at this time, as T.H. Marshall notes: “The professional had to change his ground. He had to admit that his occupation was laborious, like the tradesman's – and even to glory in the fact – but to assert that it was labour of a superior kind. The idea of service became more important than the idea of freedom.”Footnote ⁸¹

In the legal profession, this changing of ground happened at both the higher and the lower ends: the Bar re-oriented itself, subscribing to a model of service. But large sections of the “lower rungs”, increasingly made up of the new, socially-mobile middle class, were also eager to improve their own prospects. But this did not preclude a continuing emphasis on the division between barrister and attorneys. As Brooks notes: “Drawing heavily on classical antecedents and humanist approaches to jurisprudence, the Inns of Court and the Bar claimed that theirs was a scientific subject which involved ‘liberal’ learning. By contrast, the attorneys were often described as merely ‘mechanical’ practitioners of a distinctly lower social and political status.”Footnote ⁸²

An illustration of the Bar's sense of being superior, both in education and in class, is evidenced in the County Courts Chronicle in 1848, where the speaker – a barrister – emphasises the “superior” class of practitioners at the Bar: “the Bar look upon the judges as one of themselves, and only of equal rank and status in society. But the attorneys are of a class below the Court in professional, rank, and have not the same status in the world.”Footnote ⁸³

The division between upper and lower rungs of the legal profession was therefore not simply a social one, but was actively policed. Attorneys were discouraged from joining the Inns of Court and could only join the Bar if they “abandoned their practice in the lower branch for at least two years before being called”.Footnote ⁸⁴ In short, at the time of the founding of the county courts many areas of practice in the superior courts were inaccessible to the lower rungs of the profession because they did not have rights of audience, with the Bar enjoying a total monopoly on superior court advocacy.

In this context, then, the new county court becomes critically important because it offers a new site of practice to attorneys and through them, a means of establishing themselves and becoming recognised advocates.Footnote ⁸⁵ Such a move could both distinguish them from lay practitioners as well as allow them to access areas of practice previously the exclusive reserve of barristers.Footnote ⁸⁶ This echoes Larson's argument of the “double” nature of the professional project which “intertwines market and status orientations, and both tend towards monopoly – monopoly of opportunities for income in a market of service, on the one hand, and monopoly of status in an emerging occupational hierarchy, on the other”.Footnote ⁸⁷ The new county courts were therefore not only a new forum for poorer litigants to pursue debt claims or a new area for legal professionals to expand into. They were also an opportunity for attorneys to stake a claim to be taken seriously as advocates. And it is when attorneys begin staking their claim that the LiP begins to emerge.

VII. The Early Years of the County Court

In June 1847, the first edition of the County Courts Chronicle was published, advertising itself on its masthead as a monthly publication by the editor and contributors of the Law Times. At this point, the courts themselves had been in operation for less than two months. The front cover is dedicated to notices of the next county court sessions on each circuit, followed by seven pages of law reports from across the country. The bulk of the rest of the publication is devoted to specific subsections on particular roles. The mission statement the Chronicle outlines for itself is: “to provide for all who are engaged in the County Courts, whether as Judges, Clerks, Bailiffs, Practitioners or Suitors, a medium for mutual information and intercommunication on the matters relating to the administration of justice by a tribunal which is of incalculable importance.”Footnote ⁸⁸

The tone of the first edition is journalistic and experimental. The Chronicle itself acknowledges the provisionality of its current layout and arrangements, and the court reports themselves frequently give descriptive accounts of the circumstances of the courts in addition to specific cases. For example: “Narbeth, May 20. There were thirty-six cases entered. The courtroom, which is much too small, was crowded to excess with upwards of 100 persons being obliged to wait in the street outside.”Footnote ⁸⁹ In the reports themselves, self-representation is clearly common, with up to half the cases in the first half a dozen issues involving at least one individual appearing in person, if not on both sides. It is difficult to make any estimates of the proportion of self-representation in general because the reports are only of a fraction of the cases that were heard. But it is reasonable to assume that an even higher proportion than that which appears in the law reports self-represented in actuality.Footnote ⁹⁰ This is because there is an explicit agenda on the part of the Chronicle to report cases of legal interest. For example, in Berwick, on 29 May: “At the first Court there were twenty-five cases entered, while at the last there were upwards of sixty. The only case interesting to that of the Profession” was followed by an account of a dispute between an agent and a represented defendant.Footnote ⁹¹

For a case to be of legal interest the concept must be understood in legal terminology: this is more likely to arise in cases with represented parties. Consequently, matters of unrepresented parties are more likely to go unreported. However, although the Chronicle is staffed by members of the profession, with their concomitant clear interest in drawing out relevant legal issues, the publication commits itself to the interests of self-represented parties as well as that of the profession. The County Courts Chronicle dedicates a section to the “Suitor”, in other words, to the litigant, who was more likely than not to be self-representing. This section is filled with information that is intended to assist such individuals. As the editor explicitly states in the epigraph opening this article, a Suitor in person and an attorney representing a client are of equal dignity and status.Footnote ⁹² At this point, then, we may safely observe that self-representation is seen by the authors of the publication as relatively normal.Footnote ⁹³

So, although I have made much of the radical transformation resulting from the County Courts Act 1846, it began as an attempt to combine the introduction of more professional practices without completely dismantling what came before, thus retaining enough of the old courts of requests to ensure the new court's popularity. This hybridity can be seen in several ways. To start with, and crucially, the County Courts Act clearly outlines the right of trained attorneys to represent litigants and restricts the ability of other third parties to act as representativesFootnote ⁹⁴: “[o]ne of the most serious evils to which the suitors resorting to inferior tribunals have been exposed – that of being duped into the employment of sham practitioners – has already received a very decided check from the Judges presiding at Southwark and in Bloomsbury.”Footnote ⁹⁵

Indeed, who had the right to appear, for whom and under which circumstances is a critical issue.Footnote ⁹⁶ The crackdown on unregulated individuals is one Larson argues is characteristic of the professional project, and it receives regular and consistent coverage in the Chronicle over the years.Footnote ⁹⁷ At the same time, in the early days of the county court a fees cap is in place, stopping legal representatives from claiming costs from the court in any proceedings less than 5l (£5).Footnote ⁹⁸ This means that the county courts were working towards greater regulation of the profession by weeding out third parties, but also restricting access to legal representation in practice as the majority of disputes fell below this threshold.Footnote ⁹⁹ This is in keeping with the intention stated by the initial proposers of the new county courts that they would be as accessible and simple as possible.Footnote ¹⁰⁰

There is also a clear attempt to link the county courts to the superior courts in an effort to legitimate them: the Chronicle advises that the judges keep an eye to the “dignity”, “decorum” and “tone” of the superior courts. The following extract is typical of these kinds of editorials:

On the one hand, this is reflective of the concerted desire to get these county courts more in line with the “dignity” of superior court proceedings, thus making them an appropriate forum for respectable professionals. But, on the other hand, there was still no appeal avenue to the superior courts for the vast majority of cases. As the Newcastle County Court judge points out: “I am not bound by the specific rules of practice of the superior courts, nor by those of the County Court.”Footnote ¹⁰²

The attempt to achieve this new hybrid court, where professional standards could be introduced, while informality and simplicity could be retained, runs into difficulties quickly. We can see this in the cases reported in the Chronicle in the 1840s. For example, in Phillips v Edwards, the plaintiff in person fails to make out his case and applies for an adjournment: this is granted but only on condition he pays the defendant's costs for attendance that day. But in Newcastle, an illiterate man who fails to bring his daughter to assist him in his plaint is also allowed to adjourn without paying defendant costs.Footnote ¹⁰³ In Warwickshire, the judge states that he will not allow anyone to speak for the plaintiff except a member of the plaintiff's family, but in Phillips v Edwards, the brother of the party asking for adjournment is not allowed as the judge refuses to recognise him.Footnote ¹⁰⁴ Similarly, in Lloyd v Jones the judge will not recognise the plaintiff's wife.Footnote ¹⁰⁵ Inconsistencies between judges emerge very early, indicative of the separate municipal existence of the previous courts of requests.Footnote ¹⁰⁶

This also means that the question of who should have legal representation, and under what circumstances, also varies. Many judges expressly argue that they want to encourage the presence of attorneys in the new county courts.Footnote ¹⁰⁷ But other judges argue that legal representation is unnecessary, stressing that lawyers are a “luxury, not a necessity”.Footnote ¹⁰⁸ In Jennings v Shepherd, “His Honour said he should be glad to allow costs where there was any necessity for an attorney's attendance; but in ordinary cases he should not, nor would he lay down any rule, but judge each case per se”.Footnote ¹⁰⁹

Lack of consistency is also apparent in the court environment itself, which greatly exercises the Chronicle from the beginning. Consider, for example, this memorable account of Brentford County Court in 1847:

The choice of venue, a public house, draws attention to the lack of dedicated court buildings at this point in time.Footnote ¹¹¹ The writer goes on to note:

The gloriously mixed metaphors employed by the distressed attorney above emphasises that what he sees is not what he recognises as proper court practice. This is due to the absence of uniformity and distinction which leads to a lack of respect by the audience and other participants (who, outrageously, feel that they had the right to speak: even women!):

And this explains why attorneys are so upset by proceedings such as that taking place at Brentford. It also explains why time is spent in the Chronicle discussing the regulation of dress. One upset writer complains in August 1847 of a professional wearing a “ginger-beer blouse”, commenting that it was “wholly out of place and, under the circumstances, disgraceful”.Footnote ¹¹⁵ While this might come across at first glance as snobbish, it emphasises the importance of distinction in legitimating courts and the practitioners operating within them. Attorneys are trying to work out what a proper court is in the shadow of the nineteenth-century superior courts. It is the growth of these markers of distinction that starts to undermine self-representation, as we begin to see from the 1850s onwards.

VIII. The Disappearance of the Self-Represented Party

The 1850s, 1860s and 1870s in the county courts was a time of increasing standardisation of practice and creeping formality that manifests in several different areas. By this period, there are codes of rules, all judges have seven years of experience at the Bar and there are qualified registrars.Footnote ¹¹⁷ Successive alterations to the statute also raises the ceiling on the amount that can be disputed.Footnote ¹¹⁸ The fees cap for attorneys is also continuously raised.Footnote ¹¹⁹ This move was, undoubtedly, partially in response to the Chronicle's repeated advocacy. Both changes mean that by the 1860s and 1870s financial recompense was reasonable enough not to exclude attorneys from the county courts, and more begin appearing. At the same time, regulations are tightened to ensure that only credentialed individuals can act as representatives, with an emphasis on weeding out “sham attorneys”.Footnote ¹²⁰

On top of these developments, calls for a greater connection to superior courts result in the eventual fusing of the county courts to the appeal circuit in the 1870s.Footnote ¹²¹ This was part of wider, sweeping changes to the courts through the Judicature Acts of the 1870s.Footnote ¹²² This fusion does not result in universal acclaim. As one Chronicle correspondent expresses it, such fusion would be “subjecting a sphere to the rule of the square”.Footnote ¹²³ As he goes on: “we have often to protest against the public's allowing itself to be guided upon questions of law reform by the profession, whose habits or interests are bound up with the abuses.”Footnote ¹²⁴ However, this development also reflects the county court's success. By the 1870s it is adjudicating on almost all civil matters, having been granted jurisdiction on bankruptcy and admiralty matters. Common practitioners now have access to areas of practice that had once been completely out of their reach.Footnote ¹²⁵

These changes are reflected in the Chronicle, which by the mid-1850s is a noticeably different publication. By late 1849 the Chronicle is reporting relevant superior court decisions.Footnote ¹²⁶ While it is only logical that superior court decisions are reported on once there are precedents that bind the court, the decision to include superior court decisions before there are official appeal courts underlines the Chronicle's strong desire to emphasise that the county courts are of equal respectability and scrupulousness to the superior courts. These changes also mean that the county court reports are given much less prominence than originally, with the bulk of reporting now being of superior court decisions.

By June of 1849, there are 18 pages of superior court decisions before reaching the county court decisions (covering less than six pages). Ten years later, in June 1859, the Chronicle contains only three pages of county court reports out of 16 pages in total. By June 1869, county courts accounts are no longer listed: the report section is dedicated to superior courts only, and they are grouped together by subject matter (contract, equity and so on).Footnote ¹²⁷ There are four county court reports, each of which reports a single case, represented on both sides, with extended discussion on a point of law for between half a page to two pages. This format continues throughout the 1880s, with it being difficult to find any county court reports in the publication let alone a self-represented party.Footnote ¹²⁸ By 1889 the Chronicle is described as: “a report of cases required in the County Court and argued and determined in the Superior Courts.”Footnote ¹²⁹

Throughout this period, we also see repeated advocacy by the Chronicle to formalise procedure even further. The following extract comes from the Chronicle in 1870: “I ask why should not a defendant be obliged to set out in writing a statement of his defence, and deliver it to the plaintiff or his attorney within a limited time before the hearing, and that in default the plaintiff be at liberty to sign judgement if the cause exceed a certain criteria?”Footnote ¹³⁰ The idea that defendants should submit written outlines of their defence is not new; in fact the initial proposal came in 1849, two years into the new county courts.Footnote ¹³¹ But what they do point to is the degree to which the presence of legal professionals in the court is normalising the need for legal skills. The argument outlined above is an argument recognisable today: that it is a simple matter to submit a written statement in Plain English. But as we already know, such a requirement is far from a simple task for a self-represented litigant.Footnote ¹³²

And here we see the slippery slope: as more attorneys frequent the county court, legal skills become seen as essential. As a concerned letter writer notes in 1868: “now we fear very much that the extended jurisdiction has been given to the CC without sufficiently providing facilities for the useful exercise of it. Procedure has not been adapted to the needs of the suitors.”Footnote ¹³³ This shift happens without necessarily recognising how these changes may exclude self-represented parties from being able to act effectively.Footnote ¹³⁴

IX. A Change in Attitude

The changes taking place in the county courts result in a sea-change in attitude towards self-representation in the Chronicle too. In 1852, the Chronicle emphasises that “every man has a common law right to appear and conduct his own case in any Court in the kingdom”.Footnote ¹³⁵ But The Suitor section has disappeared by August 1849, indicating a presumption of the normality of legal representation even at this early point. From 1852 to 1862, the section reporting county court decisions is renamed “County Court Curiosities”. This section covers “amusing” incidents, frequently ones that occur at the expense of self-represented litigants.Footnote ¹³⁶ A good example of the tone of this section is reported in the memorable case of: “Who “robbed” the dead pig? Damage to a pig, 6.”Footnote ¹³⁷ In this case, the parties are both self-represented and the dispute is over whether or not the defendant disembowelled (‘robbed’) a pig to the value of 6 s. of innards against the instructions of the plaintiff. Citing the exchanges verbatim, the report becomes a kind of mini-play complete with laughter from the court, and dramatic escalation, culminating in the plaintiff flopping the pig corpse out onto the courtroom table: “(continued laughter, while plaintiff tumbled the two lumps of pork about the court-table with extraordinary agility, to the great amusement of the spectators).”Footnote ¹³⁸

Most significantly, in September 1866 the Chronicle, reporting an incident involving a self-represented party, comments: “This seems an exemplification of a hackneyed observation that a man who is his own lawyer has not a Solomon for his client.”Footnote ¹³⁹ By this time, then, we have a reversal of the original 1849 stance of the Chronicle seen in the opening epigraph of this article. As we saw then, there was a commitment to the role of self-representation in the county courts and an implicit presumption of its normality. But less than 20 years later, the idea that an individual would go to the county court without a lawyer is seen as indicative of a lack of judgment.

This belief in self-represented parties’ lack of judgment is made explicit by one Chronicle writer in 1859 advocating the abolition of trial by jury.Footnote ¹⁴⁰ The author outlines what exactly legal training gives: “The faculty of hearing without being deluded by sophistry and eloquence … The Greeks fabled that the Goddess of Wisdom sprang fully armed and grown from the head of Zeus. The English seriously believe that judicial wisdom springs forth mature from every tradesman's head. This is a fit article of faith for a nation of shopkeepers.”Footnote ¹⁴¹

This argument – that those who were not lawyers lacked the ability to pursue or defend a claim effectively – is common in the Chronicle from the 1850s onwards.Footnote ¹⁴² The irony here is that, while the argument for the necessity of legal skills is initially targeted at weeding out “sham” attorneys, it eventually undermines self-represented parties too. Once the proposition that only properly educated, credentialed and regulated professionals can provide representation, the discourse quickly widens to suggest that only such qualified individuals have any business at all being in court.

These changes do not, however, stop individuals from self-representing. As Paul Johnson points out: “There was no obvious sign of this growing legal formalism crowding out the layman's direct access to the due process of law.”Footnote ¹⁴³ But the self-represented party tends to be either ignored, or mocked and derided, by the 1870s.Footnote ¹⁴⁴ At this point, this is arguably because self-represented parties cease to be valued informants. Because they lack the specialism to understand the nature of their dispute in legal terms, the information they contribute becomes irrelevant and counterproductive. Thus, two factors exist that persist today: a derogatory attitude towards self-represented parties, and a tendency to render such parties invisible in official legal accounts.

X. Whoops! We Let the Litigants in

The above sketching out of the development of the county court seeks to demonstrate the degree to which self-representation becomes derided in tandem with broader developments in the nineteenth-century professional project. But what does this mean for the creation of the term litigant in person? The term itself never appears in the County Courts Chronicle. Footnote ¹⁴⁶ But it does begin to appear in other publications in the 1880s. By the time it appears, it almost invariably refers to the pathological or vexatious litigant: “Mrs Thompson, the well-known litigant in person at the London Law Courts, was charged at Marlborough Street Police Court with being drunk in Piccadilly. The defendant emphatically denied the offence, but the constable's view as to her condition was confirmed by medical evidence and a small fine was imposed by Mr Hannay.”Footnote ¹⁴⁷

In 1884, the London Evening Standard is talking of woman who is “well known” as a “lady litigant in person”.Footnote ¹⁴⁸ In 1890, The Morpeth Herald too refers to a lady “litigant in person”.Footnote ¹⁴⁹ While the proceedings relating to Mrs. Thompson, referred to above, are obviously criminal, it suggests the kind of individual that was indicative of those who self-represented. Mrs. Thompson, serially litigious and incompetent, is already recognisable as the standard LiP we see today.Footnote ¹⁵⁰ By the time the term appears, it is also clear that successful LiPs are exceptional.Footnote ¹⁵¹

But what exactly does the term mean? The term's first appearance in case law, in 1896, simply notes that “in case law, every litigant in person has an absolute right of audience”.Footnote ¹⁵² But what this article has sought to demonstrate is that a “litigant in person” is much more than this. It is a concept that only makes sense where legal representation is the norm. More than this, the term only exists in the context where self-represented parties have lost their less formal forums. The term LiP references the context of a formalised legal process indicative of the latter stages of the professional project: where unregulated practitioners have been largely stamped out, and where there is strict attention placed on distinction of legal practitioners from the lay. The appearance of the term, then, does not signify the LiP's incorporation into legal process; instead it marks their distance from what is legally appropriate. LiPs are created in the moment where they are no longer competent: they are established as a phenomenon by virtue of their failure to mimic legal professionals. The LiP's incompetence, then, is not a failure of their role, it is their role. Their inability to perform successfully (although there are exceptions, these are only considered as exceptions) reinforces the need for legal professionals.Footnote ¹⁵³

Tellingly, while self-represented parties are mocked in the Chronicle, criticism of LiPs is overwhelmingly found in the higher courts (perhaps telling us why the term never appears in the Chronicle).Footnote ¹⁵⁴ For example, in 1892 the Gloucester Herald runs an interview with a county court judge. The judge notes the difficulties caused by litigants in person in the superior courts, compared with the relatively trouble-free experience of them in the lower courts, where as we have seen, they were complained about by legal professionals, but persisted, largely under the radar. And this leads to the most compelling reason why LiPs are talked about the way they are: because the fusing of the county courts to the appeal circuit gave self-representing parties access to the superior courts. This means that parts of the legal profession that had no association with the county courts – specifically the Bar and the superior court judiciary – met self-represented litigants for what is likely to be the first time in their professional lives. It is their collision with the unrepresented parties who had been operating in parallel court processes, separately from those working in the superior courts, that creates the LiP. This is why the term does not appear in the County Courts Chronicle, and emerges at the time of fusion with the appellate courts. The decision to integrate the county courts with the superior courts seems to have been taken without realising that not only would standardised practice filter downwards but that self-represented parties would also filter upwards: and by the time they got there, they were LiPs.Footnote ¹⁵⁵