Of course, the value of money to you depends on how much you have. But £10,000 I suggest is a lot of money to a lot of people. But that’s how far the definition of a ‘small claim’ in our court system extends, with a lower exception of only £1000 for personal injury and some housing cases (with the former subject to a much drawn out government review for increase).
It is true that the court system is designed on the basis, broadly, that the more valuable the case the more rigorous are the procedures to ensure high quality fairness in process and the ultimate just outcome. The possible drawback is greater expense particularly in terms of the extent of the need for legal assistance.
So small claims are at the lowest end of the scale, with the least formality. Some would argue indeed that it is a form of ‘rough justice’. Many of the court rules are dis-applied, by which I mean the ‘Civil Procedure Rules or ‘CPR’, not to be confused with cardiopulmonary resuscitation although on a separate point, you may take the view from what I say later that this is what our creaking court system really needs now following austerity cuts.
On the disapplication, I give just a couple of examples. The use of expert evidence e.g. to prove that the second hand car you bought is not roadworthy, is more restricted and, even if you are allowed an expert, their fee if you win is unlikely to be recovered against the other party beyond a fairly nominal amount. And further, the normal rule that parties have to disclose all documents, which specifically includes those which harm their case, is dis-applied: parties only have to deliver copies of documents upon which they intend to rely, 14 days before the hearing. So, on the face of it a damning email undermining your case doesn’t have to be disclosed (although if solicitors are instructed their ethical duty would cause them to advise otherwise). All this is in the interests of (relative!) speed and informality, and cheapness too: as you generally won’t recover the cost of your solicitor anyway in a ‘small claim’, that’s just as well. So, there is a trade-off there, as long as you are aware of it, in initiating or defending a small claim. And this trade-off has to overlook the fact that there is nothing in principle which means that small claims are any less complex in terms of level of evidence and legal argument than higher value claims.
The trouble is that due to changes to the operation of the court system, primarily due to austerity cuts and the somewhat hollow promise of compensating technological advances, even that trade-off looks less and less attractive. Court fees have risen to double what they were a few years back meaning that even for a small claim, depending on the amount, you will be paying several hundred pounds for issuing your claim and for the hearing if the case does not settle beforehand. Court buildings are closing across the country so that hearings are taking place at venues remote from one or both parties. Cuts in staff also means inevitably that courts are less efficient.
Add to this something else inherent in our system, namely that you can win but the other party refuses still to pay and you are unable to enforce your judgement: where does this leave us?
Fortunately there is an alternative: mediation! The government does run a small claims mediation service which is conducted on the telephone. The problem is of course you have to issue your claim (and therefore pay the fee) before you can avail yourself of it. Nor will you have a choice of mediator. ASM PLUS has a tested, efficient, small claims service. For instance, if parties agree we can include a provision in a settlement that it is conditional on cleared funds being received.
It may be that you will have to say to the other party that you will use the small claims court if need be to bring them to the table, but going to the table is clearly worth it for both sides. Additionally, there are all the other advantages of mediation: remedies that a court cannot award, such as apologies, and if desired, a continuation of a business or private relationship. The message therefore is: mediate when you can, litigate only as a last resort.
Civil and commercial mediator, mentor, trainer, author and consultant in long established firm of solicitors.