The Small Claims Court - A view by Alec Samuels

Buying at a Distance A good success rate

The Small Claims Court, started in 1972, has been a considerable success. Jurisdiction is £3,000, or £1,000 for personal injury. The procedure is comparatively informal. The hearing takes place in private. There are usually no legal representatives. The strict rules of law and evidence, and procedure are not applied. The District Judge acts as an arbitrator and usually tends to interview the parties in order to find out what it is all about. There are no costs to pay, win or lose. Something like three-quarters of all County Court cases are small claims, and the claimant has a good success rate.

Difficulties and limitations A £5,000 Limit - is it a good thing?

However, certain difficulties and limitations have manifested themselves over the years. In the nature of things the lay party is usually lacking advice and poorly prepared. He may not know or understand the relevant legal principles. He may have little sense of relevance, so far as law and evidence are concerned. He may not have the relevant documents with him. He has no witnesses, no witnesses to fact, no experts.

Pre-trial assistance

The availability of some sort of pre-trial advice and assistance would help enormously. He needs discussion with a lawyer; assistance in drafting a statement, and a claim, and a written submission to the judge; assistance in understanding the relevant law; assistance in getting together the relevant evidence, e.g. correspondence, estimates, invoices, bills, receipts.

A national legal service would help. The green form scheme (up to half an hour of free advice for those on social security) could and should be much more widely available. Indeed, many disputes would probably either be settled or not proceed at this stage.

Judges performance

The performance of the District Judges varies enormously. The Judges, mostly, do not read the papers beforehand. They tend to try to pick it up as they go along. They tend to be interventionist. They tend to be "quick"; they want to "get on with it". They may lean on the parties to compromise and settle. They may seek to apply the rules of evidence and the substantive law; more commonly they seek to identify the issues, to get to the relevant evidence or "story", and to make what they see as a just or fair decision. After

all, it is an "arbitration". The result is that the Judges vary enormously in attitude and approach and style, and there is reason to think that the individual personality of the Judges must play a large part in the decision-making.

Obtaining judgement

As we have seen before, obtaining a judgement is one thing, getting the money is another. The losing corporate defendant may simply wind up, and rise again phoenix-like in another company and resume trading. After say, 14 or 28 days of non payment the judgement should carry a penal rate of interest, and, following one warning, contempt and imprisonment should apply.

The Lord Chancellor proposes to raise the jurisdiction limit to £5,000 in April 1999 for non-personal injury cases. Superficially this might seem to be in the interests of the small litigant. However, a claim of say £4,000 or more is beginning to look like a fairly substantial claim, and the claimant, very probably, will need legal advice and representation, as well as an expert witness. The prospect of winning a strong case, but not being able to recover costs from the losing side, will be daunting, inhibiting and deterring.

Legal aid will not be available. The case will need to proceed on the conditional fee system. So a party with a strong case who wins, will be left paying his own costs. Normally under our system of civil justice the winning party in a substantial case reckons to recover his costs from the losing side.

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