Small Claims in the County Court (Part 2)
In Starmer v Bradbury[i] Simon Brown LJ described the small claims procedure as understandably and necessarily brisk and informal. In 2000 the average length of hearings was 66 minutes.[ii] Despite this, Professor John Baldwin of the Institute of Judicial Administration at Birmingham University , who has carried out research into small claims over a number of years, describes the atmosphere at such hearings as polite and relaxed.[iii] Although he refers to somewhat rough and ready judicial methods he found that most participants in his sample approved of the cheap, simple and speedy resolution of disputes in which the judges decision is in effect final. He found that at least three quarters of the litigants included in [his] sample could be described as broadly satisfied with the way that the hearings in which they had participated had been conducted and that those complaints that were made were not particularly serious. This is a remarkable approval rate - if one makes the assumption that every litigant who won was satisfied, it means that approximately half of those who lost were also broadly satisfied. This aspect of Baldwin s research was carried out among participants in cases heard in 1996, prior to the recent increases in the jurisdiction. He found that 70% of his sample were enthusiastic or broadly sympathetic to the idea of increasing the small claims jurisdiction and that less than 3% opposed the idea.[iv]
The statistics were very different to those for comparable traditional open court trials. 48% of litigants who had participated in open court trials said that they would be put off from appearing in the county court in future as a result of their experiences in the present case, whereas only 12% of small claims litigants said that they would be seriously deterred from using the procedure again. Baldwin noted that the open court procedure is designed for lawyers and that litigants in such trials were particularly concerned about being ordered to pay substantial sums in legal costs both their own and their opponents. Baldwin s conclusion was that
It can be confidently stated that a small claims hearing provides a forum in which the everyday disputes both of private individuals and of small businesses can be dealt with conveniently, inexpensively and without inordinate delay.[v]
This is reflected by the number of small claims brought. The number of such hearings doubled between 1990 and 1993. In 1996 small claims represented over 80% of all defended hearings, an increase from 70.6% of all civil proceedings disposed of in 1990. In 2000 a total of 1,631.966 civil claims were issued in England and Wales . Of these 72.9% were for liquidated sums of less than £5,000. In 2000 55,836 small claims were disposed of at trial. This represented 79.7% of all defended civil trials.[vi]
At the same time, the type of cases brought as small claims has varied. Initially consumer claims were among the most numerous. Customers sued when their leather jackets were ruined by dry cleaners, when electrical appliances failed within the guarantee period or when furniture disintegrated. Now consumer claims amount to no more than 10% of small claims. This is partly a measure of the success of the procedure retailers knowledge of the effectiveness of the procedure means that most consumers obtain redress without issuing court proceedings. It also the result of the strengthening of consumer protection legislation over the last thirty years.[vii] Twenty-two percent of small claims arise out of road traffic collisions, with motor insurers finding it a quick and inexpensive procedure to resolve matters of liability. A small percentage of cases involve disputes between landlords and tenants, but, as there is a separate procedure for possession claims,[viii] these are not, in national terms, numerically significant. Most claims by individuals now relate to allegedly substandard services brought against plumbers, electricians and builders for defective building works or by dissatisfied holiday makers against tour companies. The balance of over 40% involve some form of debt recovery, generally by small businesses, other companies, or professionals such as solicitors, architects, accountants or surveyors.[ix]
This picture is largely confirmed by a snap-shot of small claims heard by the author in West London County Court during the first six months of 2002. The types of claim heard were:
Commercial/business debt 44%
Consumer 2%
Complaints about services (e.g. builders, plumbers etc) 10%
Road traffic claims 16%
Landlord and tenant (return of deposit, service charges) 22%
Employment (unpaid wages) 4%
Other 2%
The percentage of landlord and tenant claims was undoubtedly higher than the national average a reflection of the size of the private rented sector within the courts district, especially in the
Earls Courtarea.
The Claims for commercial/business debt were broken down as follows:
Claim by company/firm against another company/firm 62%
Claim by company/firm against an individual 24%
Claim by individual against individual 14%
The category company/firm was used to include limited companies, partnerships, firms and individuals using a trading name.
These claims for commercial/business debt were brought by builders, surveyors, magazines (for unpaid advertising), a burglar alarm company, an accountant, a marketing company, a motor-home supplier, furniture manufacturers, a private kindergarten (unpaid fees), a hotel booking company, a bank (unpaid loan), a drain cleaning company, a kitchen installer, a decorator, an insurance company, a roofer and a video production company.
Among all the small claims heard, the amount claimed was
Less than £1,000 42%
£1,001 to £2,000 24%
£2,001 to £3,000 12%
£3,001 to £4,000 8%
£4,001 to £5,000 14%
A breakdown of parties showed that roughly half were individuals and that roughly half were companies or firms. There was no significant difference in between claimants and defendants.
(i) All parties (i.e. claimants and defendants)
Companies/firms 48%
Individuals 52%
(ii) Claimants
Companies/firms 44%
Individuals 56%
(iii) Defendants
Companies/firms 52%
Individuals 48%
Overall, slightly less than one in five parties were represented by a solicitor or barrister
All parties (i.e. claimants and defendants)
Barrister or solicitor 18%
In person or unqualified representative 63%
No personal attendance 19%
Almost without exception, the unqualified representatives were employees, directors or other representatives of companies or firms. The lack of any personal attendance at court occurred for a number of different reasons - either because the claim was not pursued or defended or because written evidence was submitted or because a request for an adjournment was refused.
There was no significant difference between the proportions of claimants and defendants who were legally represented
(i) Claimants
Barrister or solicitor 18%
In person or unqualified representative 66%
No personal attendance 16%
(ii) Defendants
Barrister or solicitor 18%
In person or unqualified representative 60%
No personal attendance 22%
However the figures for legal representation are distorted by the level of representation in road traffic claims. 81% of parties in road traffic claims were represented by barristers. There was no significant difference between the representation of claimants and defendants in road traffic claims. If road traffic claims are removed from the statistics, the position is very different. Only 4.75% of parties in non-road traffic claims were represented by barristers or solicitors.
The West London County Court statistics show that small claims were heard there more quickly than the national average. The time between the issue of claims and final hearings was
Less than six months 70%
Between six months and nine months 10%
Between nine months and one year 16%
Over one year 4%
50% of the claims where there were more than nine months between issue and final hearing were road traffic claims where both parties were legally represented. If claims where both parties were legally represented are excluded, the figures are
Less than six months 77%
Between six months and nine months 11%
Between nine months and one year 7%
Over one year 4%
The party who lost sought permission to appeal from the district judge in 6% of cases. Permission to appeal was not granted by the district judge in any case. Permission to appeal from the circuit judge was sought in 2% of cases. Like the results of Professor Baldwins study, these figures would appear to indicate a remarkably high degree of satisfaction among litigants. They also reflect a very marked contrast to some European civil law jurisdictions where almost all first instance decisions are appealed.
The main problem with the small claims track is enforcement a difficulty which is common to all claims in this country, irrespective of value. Claimants may obtain judgment for a disputed debt without too much difficulty, but enforcing it may be more difficult. In theory there is a wide range of methods of enforcement - e.g. issue of a warrant instructing the bailiffs to seize the debtors goods, an attachment of earnings order requiring the debtors employer to deduct money from wages, a third party debt order freezing money in the defendants bank account or a charging order which can lead to enforcement against the debtors land.[x] In practice though approximately half fail to recover judgment debts or have difficulty in doing so. This important aspect of procedure is currently being considered by the Lord Chancellors Department and its Enforcement Review is expected later this year.[xi]
Nic Madge,
This article is a modified version of a paper delivered at the Franco-British Judicial Co-operation Colloque in Paris on 14 June 2002.
back to civil procedure back to home back to small claims (first part)
[i] The Times 11 April 1994.
[ii] LCD Judicial Statistics 2000. The average length of an open court trial was 3 hours 58 minutes.
[iii] Baldwin , Monitoring the rise of the small claims limit: litigants experience of different forms of adjudication, LCD Research Series 1/97, December 1997, p17.
[iv] Baldwin pp4, 51 and 54.
[v] Baldwin pp24, 54, 26 and 74-75.
[vi] LCD Judicial Statistics, published annually.
[vii] e.g. the Consumer Credit Act 1974, the Unfair Contract Terms Act 1977, the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 and the Unfair Terms in Consumer Contracts Regulations 1999.
[ix] Baldwin p48. The LCD Judicial Statistics for 2000 give different figures, but note that inconsistencies in data may be affecting accuracy. The LCD statistics are
Personal injury claims 6,280 (surely too high)
Other negligence 6,743
Debt 37,092
Non-possession housing 836
Other 4,885
[x] See especially CPR Parts 70 73.
[xi] Baldwin p65. See too Enforcement of Civil Court Judgments LCD Consultation Paper, 1998.