Reasons for change

Up until the implementation of the Woolf reforms there existed a complicated set of procedures and systems as a remedy to civil disputes. This included separate rulebooks for the High Court and Court of Appeals and for the County Court, commonly known as the ‘White Book’ and the ‘Green Book’. This system led eventually to a complete review of the civil procedure and to reforms of the whole process known as the ‘Woolf Reforms’.

These reforms were extensive and varied and affected small claims procedures as well as those concerning weightier matters. It is the small claims procedure that we will consider and a system now known as the Small Claims Track.

The whole point of the reforms, mentioned above, was to improve the civil justice system. Lord Woolf stated that a civil justice system should:

· be just in the results it delivers;

· be fair in the way it treats litigants;

· offer appropriate procedures at reasonable cost;

· deal with cases at reasonable speed;

· be understandable to those who use it;

· be responsive to the needs of those who use it;

· provide as much certainty as the nature of particular cases allows;

· be effective, adequately resourced and organized.

While the list mentioned above has ideals that are no doubt important and desirous of full achievement is not possible to do this as many of these aims actually conflict with each other to some degree. Is seems impossible to resolve these conflicts fully and one example is comparing the first and second aims of justice and fairness, with the fourth one of reasonable speed. The concept of speed places burdens on individuals that conflict directly with the ideal situation. This would be where we would have all the time in the world to pursue justice and fairness and yet it is not possible le afford such time. The third aim of reasonable cost also limits the amount of resources available to a perfectly fair system. It is for reasons such as these that Lord Scarman once commented:

“To be acceptable to ordinary people, I believe legal process in litigation must be designed to encourage, first, settlement by agreement; secondly, open and speedy trial if agreement is not forthcoming. In other words, justice, not truth is its purpose. It is against the criteria of justice and fairness that the system must be assessed.”

Prior to April 1999 there were many inconsistencies regarding the aims mentioned above and the Woolf Reforms were implemented to address these problems. The new system was designed with the problems of the old system in mind and to bring about a system where the aims of Lord Woolf were more fully met.

It can be said that the Woolf Reforms did not alter the small claims procedure in any significant way.

The civil justice system had been seen to be giving satisfaction to only a small minority of users before 1999. It is with this in mind that consideration is now given to the Small Claims Track and to not any advantages or criticisms of the procedure.

The Small Claims Track

The procedure was previously known as the small claims court although it was never a separate court in its own right but matters were handled by the County court under a small claims procedure. The original small claims procedure was initiated in 1973 upon its establishment and as a response to the Consumers Association report made in 1967which claimed that the county courts were being used primarily as a debt collection agency for businesses. This was because at that time 89.2 percent of the summonses were taken out by firms and as little as 9 percent by individuals due to the inhibitive costs.

Even though the whole civil justice system underwent a radical change in procedure as the reforms were implemented the small claims procedure was mostly unaffected. The procedure prior to the reforms was governed by the county court which is still the case and the paperwork regarding summonses and the like were and still are in the form of forms supplied by the court and issued to the parties via the court itself as opposed to being served by the parties upon each other.

The process is aimed at providing a cheap, simple mechanism for resolving small-scale consumer disputes. Time is saved to some degree by the dispensing of disclosure requirements. The formality of court procedure within a trial situation is also dispensed with and the hearings are simple and informal. The rules that are normally associated with the presenting or allowance of evidence do not exist. Further to this, expert witnesses are not allowed unless allowance is sought from the Judge. The speed of these matters is indicated by the fact that 60 percent of matters are dealt with within 30 minutes. The fear of having to pay the other parties costs is also allayed by the fact that there is no allowance for costs orders regarding any legal expenses incurred by the use of solicitors.

Parties can represent themselves more easily without the assistance of a lawyer and there is no allowance for legal aid to have legal representation. A party can choose to be represented by a lay person under the Lay Representatives (Rights of Audience) Order 1992 made under s. 11 of the Courts and Legal Services Act 1990

In the event of a decision going against an individual there is no right of appeal and the judges decision can only be set aside on the grounds of a serious irregularity affecting the proceedings or a mistake of law. As there are no reasons given within the decision of the court in any matter there is rarely an appeal against a decision made. This fact has caused concerns relating to the Human Rights Act and matters are at hand to consider the right to appeal as about 5000 cases are appealed each year. The Lord Chancellor’s Department has published consultation paper. This deals with small claims appeals and a plan to remove the appeal grounds limitations with the requirement for leave to appeal for an oral appeal on the substance of any decision made. This would be a review rather than a rehearing of the case.

The small claims system is quicker cheaper and simpler and helpful to the court users and the staff. It empowers litigants and small businesses against creditors or for consumer complaints. If this procedure did not exist than there would be no remedy for matters concerning small amounts or injuries.

Criticisms of the new system

When a strict analysis is made between the situation of small claims before 1999 and after, there is seen to be very little difference and yet there were problems before 1999 that have not been dealt with. In fact the consultation paper published by the Lord Chancellor’s Department seems to address concerns that were there before the ‘watershed’ of the Woolf Reforms were implemented.

A reasoned judgement is not available form the Small Claims Track and therefore any decision may appear to be merely arbitrary on the part of the judge and is simply ‘a decision’. Without substantive reasons any party to a small claim cannot consider the decision in full or reach a conclusion as to whether an appeal on the very limited grounds is viable. The concept of a ‘serious irregularity affecting in the proceedings is unlikely to be the case and hardly likely to be available from the paperwork provided by the court and this leaves the more limited grounds of a ‘serious mistake of law’ which would certainly require expensive legal advice and incur costs against any appellant who had a case on the face of it for appeal. Also the level of formality varies widely and it has been suggested by the Civil Justice Review that the court forms be simplified.

Ironically the 1973 alterations sought to address the problems associated with the courts simply being used by businesses chasing debts and this is still largely the case other than by the consumer. The system is still weighted for those in a better financial position and this assists the minority rather than the majority.

Enforcement procedures are still lacking in practicality and often make it easy for the loser of a matter to evade payment and so this makes the pursuance of a matter largely a waste of time and expense, again a situation that should have been addressed by the 1973 implementations.

Overall the small claims track has not changed and we have to await the outcome of the consultation paper of the Lord Chancellor’s Department regarding any appeal process that may be available and until this takes place no real change has occurred in this area. It appears that only when there is a right of appeal are Judges such as those within the County Courts really liable for their decisions and they would be more than likely to place a substantive decision before the parties were they aware that an appeal could be imminent. It appears that a lack of substance to any decision simply renders the small claims procedure as a form of therapy for any claimant who, even though not reaching their goal, might at least feel that they “had there say”. This is not what the courts are for and this might lead to individuals simply “having their say” rather than actually seeking a remedy to their cause of action.