From early times, England had a tradition of local courts where ordinary men could pursue justice in the form of civil claims without the aid of lawyers. Some were set up by local statutes, others by custom. So, to take just one county as an example, in the sixteenth and seventeenth century, Derbyshire had a network of local courts. Most villages and hamlets had manorial courts, where tenant farmers could make complaints against neighbours who trespassed, failed to maintain their ditches and hedges or allowed their cattle to eat crops. The barmoot courts governed relations between lead miners, and regularly heard claims for debt and disputes over the entitlement to work lead veins. The clerks of these courts may have been educated men often the steward of the lord of the manor or local land owner but cases were brought and defended by uneducated, generally illiterate, tenants and lead miners, and decided by their peers sitting as jurors. One can debate the justice of a rule of law which allowed major land owners to clear villages and enclose common land for their own benefit, but it is clear from reading the minutes of these rather rough and ready court hearings that ordinary men believed that they had access to justice for these small day to day claims. [i] The local courts were part of the fabric of English rural society and perhaps one of the reasons for its relative stability.
These local courts could not keep pace with the changes in society brought about by the Industrial Revolution. By the 1830s, the decade of great liberal reform, there was a great public awakening to the urgent need for constitutional reform in the administration of justice.[ii] The result was the County Courts Act 1846, described in its preamble as an Act for the more easy Recovery of Small Debts and demands in England . It was initially a poor mans court. Andrew Amos, the first judge at Marylebone County Court, described regular litigants as being
a great proportion of the poorer classes, gaining their livelihoods by bricklaying, gardening or other out of door occupations and who subsist upon credit in the winter months, and plaints against whom are usually issued in the summer months. [iii]
The county courts jurisdiction for claims brought in contract and tort gradually increased to £50 in 1888, to £100 in 1903, to £200 in 1938, to £400 in 1955, to £500 in 1966, to £750 in 1970, to £1,000 in 1974 and to £2,000 in 1977. These increases were broadly in line with inflation. However the jurisdiction has been greatly expanded since then, first to £5,000 in 1984 and finally in 1991 when county courts were given unlimited jurisdiction.
The purpose and structure of the county court system has in many ways remained the same since 1846. The aim is still to make civil justice available locally there are now 223 county courts in England and Wales . They have continued to be responsive to the needs of smaller cases which, although small in terms of their financial value, are important to the litigants involved. However recent decades have seen two major changes in relation to small claims first the introduction of a dedicated small claims procedure in 1973 and secondly the introduction of the Civil Procedure Rules reforms of 1998 with their emphasis on proportionality.
The County Court Practice of the early 1970s, when listing the strengths of the county courts still referred to the Simplicity of procedure, suitors being able in fact to obtain relief and to defend themselves without legal assistance . . . [iv] The reality was that lawyers were increasingly dominating proceedings, even those cases involving small sums of money. The increased wealth of post-war Britain combined with a relatively comprehensive legal aid scheme meant that there was greater access to legal representation. The complexity of the substantive law meant that representation by lawyers was seen as a great advantage by litigants. At the same time a greater awareness of individual rights, in part fostered by consumer organisations and law centres [v] resulted in calls for a procedure whereby litigants could act in person without handicap.
The result was the modern small claims procedure introduced by the Administration of Justice Act 1973 and what became County Court Rules 1981 Order 19. Initially the new procedure was known, somewhat misleadingly as arbitration, although the hearings quickly entered the public consciousness as Small Claims Courts even though there were no separate courts and hearings took place in the existing county court buildings and were heard by county court registrars.[vi] Among the effective publicity material produced by the government was a free booklet, Small claims in the county court, written by Michael Birks, registrar at West London County Court, describing in detail how to sue and defend actions without a solicitor. Explaining the procedure, he wrote
This means that the hearing takes place . . . generally in private, without the formalities associated with a trial . . . The purpose of arbitration is to enable people to have small disputes resolved in an informal atmosphere, avoiding as far as possible the strict rules of procedure usually associated with court proceedings. This does not mean that rules are not observed because the object of all court procedure is to protect the interests of each party to an action and to ensure that the case is tried fairly. Nevertheless the formalities are kept to a minimum and you should have no difficulty in handling your own case. [vii]
The initial maximum limit for claims heard under this procedure was £75. It increased in line with inflation throughout the 1970s and 1980s (to £100 in 1974, to £200 in 1978, to £500 in 1981 and to £1,000 in 1991). In 1996, following recommendations by Lord Woolf, then Master of the Rolls, now Lord Chief Justice, who saw the expansion of the small claims jurisdiction as the primary way of increasing access to justice for ordinary people [viii], it was trebled £3,000. In 1998 it was further increased to £5,000, the current limit, although parties to larger claims may consent to the small claims jurisdiction. The limit of £5,000 is higher than comparable jurisdictions in many other European and Commonwealth countries.
The second major change to the small claims procedure has been the introduction of the Civil Procedure Rules 1998 which have streamlined civil justice in England and Wales and which, in Part 27 contain the procedure for cases allocated to the Small Claims Track. The starting point is the overriding objective of enabling the court to deal with cases justly. This expressly includes ensuring that the parties are on an equal footing, saving expense, dealing with cases proportionately, expeditiously and fairly and allotting the appropriate share of court resources to all cases. The Rules also provide that the parties are required to help the court in furthering the overriding objective. [ix]
Small claims are started in the same way as any other civil case by the claimant completing a simple claim form, which is available from court offices or via the internet, giving particulars of their claim and paying a fee, ranging from £27 where the amount claimed does not exceed £200 to £115 where the amount claimed exceeds £1,000 but does not exceed £5,000. The Particulars of Claim must include a concise statement of the facts on which the claimant relies.[x] Litigants in person generally have little difficulty in preparing them either completing the claim form in hand writing, typing it, or completing it on the internet and issuing electronically. The claim form is then sealed with the court stamp and generally posted by the court to the defendant. Normally the defendant has fourteen days in which to admit the claim, perhaps with a request for time to pay, or to file a defence.[xi] Litigants in person generally file their defence by filling out a standard form which accompanies the claim form and which contains space for them to set out the nature of their case. If the defendant admits the claim or fails to reply the claimant can request that judgment for the amount claimed be entered. This is done as an administrative act by the court without a hearing.
On receipt of a defence denying liability, the court sends out allocation questionnaires forms requesting further procedural information from the parties to enable a district judge to decide whether the claim should be allocated to the multi track (generally for claims with a value of over £15,000), the fast-track (generally for claims with a value of £5,000 to £15,000), or the small claims track. Claims where the financial value is not more than £5,000 are allocated to the small claims track unless there is
· a claim for personal injury which is likely to exceed £1,000;
· a claim by a tenant for breach of repairing obligations by a landlord which is likely to exceed £1,000;
· a claim for harassment by a tenant against a landlord;
· a claim involving a disputed allegation of dishonesty or
· for some other reason, such as complexity or the amount of any counterclaim, the case is unsuitable for the small claims track.[xii]
Guidance on allocation given in a Practice Direction states that
(a) The small claims track is intended to provide a proportionate procedure by which most staightforward claims . . . can be decided without the need for substantial pre-hearing preparation and the formalities of a traditional trial, and without incurring large legal costs.
(b) The procedure . . . for the preparation of the case and the conduct of the hearing are designed to make it possible for a litigant to conduct his own case without legal representation if he wishes.[xiii]
If the claim is allocated to the small claims track the norm is for the court to issue standard procedural directions (e.g. providing for exchange of documents and perhaps witness statements) and fixing a trial date before a district judge. The Court Service target is that a hearing should be listed within 60 days of receipt of allocation questionnaires. In 1996, two thirds of small claims hearings were concluded within six months of the issue of proceedings. In 2000 the average waiting time from issue of proceedings to start of small claims trial was 29 weeks. [xiv]
The key points about small claims track hearings are that they are informal, flexible and accessible. It is rare for hearings to take place in a formal court room, but if they do judges generally sit at same level as parties, rather than on a raised bench. It is more normal for cases to be heard in the judges room or chambers although it is possible for a hearing to take place anywhere, for example at a partys home (if s/he has limited mobility or it is necessary for the judge to see evidence such as allegedly defective decorations) or business premises. Although the hearings are in theory in public it is rare for anyone other than the parties and their witnesses to be present. The parties and the judge generally sit round a table, often T shaped, with the judge at the head and the parties facing each other along the stem of the T. Judges do not robe and it is rare for formal oaths to be taken by parties or witnesses before giving evidence. [xv] It is unusual for a clerk or any other court official to be present during the hearing although cases are normally tape recorded.
It is rare for the parties to be legally represented, even where the litigants are businesses or limited companies. The main exception is small road traffic collision claims where insurance companies frequently instruct young, inexperienced barristers with brief fees as low as £50 or £75 per hearing. If road traffic claims are excluded, only 14% of litigants are legally represented at small claims track trials.[xvi] There are two main reasons for this. First, the Civil Procedure Rules impose important limitations on the costs that a successful party can recover from an unsuccessful party. Generally the only costs that can be ordered are fixed costs on issuing a claim, reasonable expenses for travelling to a hearing and upto £50 loss of earnings by a party or witness for attending a hearing. Other, legal costs, can only be ordered where a party has behaved unreasonably.[xvii] Secondly the Legal Services Commission generally refuse public funding for legal representation in small claims track hearings.[xviii]
The Civil Procedure Rules expressly provide that the court may adopt any method of proceeding at a hearing that it considers to be fair and that hearings will be informal.[xix] The strict rules of evidence do not apply and judges generally take a relaxed attitude towards hearsay evidence. The way that judges conduct small claims track trials depends much on the nature of the claim and the attitude of the particular judge. Although it is possible for judges to follow a traditional adversarial approach (with an opening statement from the claimant, evidence in chief of the claimant, cross examination of the claimant by the defendant, the same procedure with the claimants witnesses, the defendant and the defendants witnesses, followed by closing speeches) many adopt a more inquisitorial approach. It may well be that the judge will start by explaining the procedure, say that s/he has read the papers and enumerate what appear to be the key issues. Once there has been clarification as to what the key issues are, it often makes sense to hear all of the evidence from both sides in relation to each issue in turn. So, for example, if a tenant is suing for the return of a deposit paid and the landlord is defending on the basis that the tenant owes rent and damaged the property before leaving, the starting point is to examine the tenancy agreement and ascertain the relevant terms. Then the judge might hear from both sides about the alleged arrears of rent, and then turn to each of the landlords allegations about damage hearing what both the landlord and tenant have to say and looking at any photos and receipts for repairs. If that course is followed, cross-examination, which litigants in person often find hard, if not impossible, generally becomes superfluous one party has the opportunity to comment upon what the other has said as soon as s/he has finished talking.
An interventionist role by judges in such hearings is effective in eliciting evidence from litigants in person. It is seen by unrepresented parties as a helping hand which they appreciate, provided that judges avoid the danger of appearing to be partial. By discussing the facts of the case, judges find what common ground does exist between the parties. This tends to narrow the differences between the parties and make the final judicial decision easier whereas traditional open court trials, with the presence of lawyers and the use of cross-examination tend to polarise the parties, increase antagonism and heighten their differences.
Lord Woolf has said
The role of the judge in small claims is not only that of an adjudicator. It is a key safeguard of the rights of both parties. In most cases, the judge is effectively a substitute for a legal representative. His duty is to ascertain the main matters at issue, to elicit the evidence, to reach a view on the facts of the matter and to give a decision. In some cases he may encourage the parties to settle. In doing so he should ensure that both parties have presented the evidence and called the witnesses germane to their case and that he has identified and considered any issue of law which is pertinent to the case in hand. He must also hold the ring and ensure that each party has a fair chance to present his own case and to challenge that of his opponent. [xx]
The key judicial skills in conducting such hearings are to maintain a balance between informality and fairness, to ensure a level playing field and to protect the weak and the scrupulous.[xxi] In practice this is achieved by preventing interruptions and parties talking over each other, and making it clear that both parties will have plenty of time to say all that they wish before the end of the hearing.
Despite the relative informality of the procedure, judgments are based upon a strict application of the substantive law and an objective judicial analysis of the facts. This is reflected by the obligation to give reasons, which are generally given orally, immediately after the hearing.[xxii] It is for this reason that the occasional call for small claims to be decided by lay adjudicators has not found favour.[xxiii]
There is a right of appeal, but this is rarely exercised. Until the introduction of the Civil Procedure Rules, judgments were final and could only be challenged if there was misconduct by the judge or an error of law.[xxiv] Now appeals may be made to circuit judges who will allow the appeal where the decision was (a) wrong; or (b) unjust because of a serious procedural or other irregularity. Wrong means that either the decision is perverse on the facts, or that there has been an error of law. [xxv] Permission is required, either from the district judge who heard the claim or a circuit judge, before an appeal can be brought. [xxvi]
back to civil procedure back to home forward to small claims (Part 2)
[i] See generally Nic Madge English Roots a family history 1995, and the references in chapters 2 and 3.
[ii] County Court Practice, 1974, p3.
[iii] Armon-Jones, Greenslade and Bradbury, The County Court 1846-1996, 1996, p12.
[iv] County Court Practice, 1974, p3.
[v] e.g. The Consumer Council Research Project to discover whether the legal system is providing a satisfactory means of settling small consumer claims referred to in Justice for All (Society of Labour Lawyers, 1968), p10.
[vi] Registrars were re-named district judges by Courts and Legal Services Act 1990 s74.
[vii] Small claims in the county court, Lord Chancellors Department, 1973, p3.
[viii] Access to Justice, Interim Report, LCD, 1998, p100.
[ix] CPR 1.1 and CPR 1.3.
[xiv] Baldwin , Monitoring the rise of the small claims limit: litigants experience of different forms of adjudication, LCD Research Series 1/97, December 1997, p74-5 and LCD Judicial Statistics 2000.
[xviii] Legal Services Commission, The Funding Code April 2000, p14, para 5.4.6. Funding will be refused if a case has been or is likely to be allocated to the small claims track.
[xx] Access to Justice, Interim Report, p108.
[xxi] In Access to Justice, Interim Report, Lord Woolf, MR wrote I believe the interventionist approach of the small claims scheme provides the most effective protection for litigants who do not have the resources to pay for legal advice and representation and who are not eligible for legal aid. p100.
[xxii] CPR 27.8(6). See too ECHR Article 6(1).
[xxiii] See e.g. the suggestion by Lord Donaldson MR that small claims should be heard by lay persons.
[xxv] Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311 and G v G (Minors: Custody Appeal) [1985] 1 WLR 647 at 652.
[xxvi] CPR 52.11(3) and CPR 52.3.