Small claims - the bare essentials
[published in The Guardian, 13 October 2001 as And Justice for Small]
Four naturists walk into a high street travel agent to ask about a two-week holiday in a Croatian beach resort. It is a standard package holiday, but the brochure refers to a daily boat from the hotel to a naturist island. The naturists ask the travel agent about this. She makes a phone call and confirms that the boat will sail every day during the summer. They book the holiday. The naturists arrive at the hotel, only to find that the Croatian government has imposed a hefty licence fee on all boat owners and it is not economical to run the trip to the island. The only beach available is rocky, just below a main road and full of families with children. Their holiday is ruined. They cannot take their clothes off and acquire the all over tan they wanted. On their return they issue county court proceedings claiming back the cost of the holiday and damages for loss of enjoyment.
Unusual facts, perhaps, but the court hearing that followed was like many in county courts up and down the country. Almost nine out of ten hearings in county courts are small claims track cases involving £5,000 or less. Fast, informal hearings are the norm. Forget High Court judges in red robes. Forget circuit judges dressed in lilac. You can even forget barristers wearing wigs and wing collars. Small claims track cases are tried by district judges in mufti. There is no bench and no witness box. Judge, parties and witnesses normally sit round a table. If the High Court provides an expensive Rolls Royce service and fast track trials with a value of £5,000 to £15,000 are middle of the range Volvo justice, these are Ford Mondeo hearings - justice without the formal trappings. Detractors who describe them as Trabant justice are wrong - small claims track hearings go much faster than Trabants. The average length of a small claims track hearing is just sixty-one minutes. The normal time from issue of proceedings to the court hearing is about six months.
The original small claims procedure was introduced in 1973. Initially it was limited to claims not exceeding £100. In those days the most common type of cases were consumer disputes - perhaps involving defective toasters or leather jackets damaged by dry cleaners. Now, with the increase in jurisdiction recommended by Lord Woolf, consumer cases are very much in the minority. Two out of three small claims track claims are for unpaid debts, often brought by small businesses. Also common are cases following minor traffic accidents without any personal injury, where one driver claims that the collision occurred because of the other's negligence.
Most small claims track cases are heard without lawyers. Do It Yourself legal representation has become the order of the day. The norm is for small companies to be represented by directors or sales managers. Litigants in person sometimes come with a friend or relative for moral support. No legal costs can be awarded, unless the judge decides that one party has behaved unreasonably. The Civil Procedure Rules do though allow for the recovery of court fees, the cost of travel, loss of earnings and witness expenses.
Unlike other county court cases, judges conducting hearings may adopt any method of proceeding that they consider is fair. The strict rules of evidence do not apply and the court may limit cross-examination. It is rare for there to be expert witnesses. The court cannot consider the evidence of an expert unless permission is expressly given. Instead judges often look at photos - or if there are no photos may want to inspect the subject matter of the claim. They may even order allegedly defective three piece suites to be brought to court to be examined or jump into taxis to go litigants' homes to look at faulty decorations or negligently installed double glazing.
The small claims track procedure is not popular among lawyers, but most litigants seem to like it. Professor John Baldwin, Director of the Institute of Judicial Administration at Birmingham University , who has carried out extensive research into small claims, describes the atmosphere at hearings as "polite and relaxed." He says that at least three-quarters of small claims track litigants are "broadly satisfied" with their hearings - and that includes those who lost. The main problem though, as with much civil litigation, is enforcement. A claimant may find it reasonably straightforward to obtain judgment, but it can be far more difficult to force the other party to pay up.
And what happened to the naturists' claim? In many cases photos are important, but, thankfully there were no snaps of the naturist beach. The man who booked the holiday referred to the relevant page in the brochure. The company rep said that the boat to the island was not part of the contract and that in any event the small print excluded liability for failures caused by third parties abroad. The judge referred both sides to the Package Travel, Package Holidays and Package Tours Regulations 1992 which state that, as a matter of law, particulars in holiday brochures are generally part of the contract and that holiday companies are normally liable for the proper performance of obligations, even by third parties. The naturists described their grievances in graphic terms, only for the tour rep to talk about the good time they seemed to be having, with their clothes on, in the bar each night. At the end of the hearing the district judge decided that the company had breached the terms of the contract, but that the naturists had derived some enjoyment from the holiday. They were not entitled to a refund of the cost of the holiday, but were each awarded £200 compensation.
Small claims track hearings - six practical tips
· Always contact the other party to try to settle the case before issuing court proceedings. Write to them or phone. Generally no party can refer to any letter written in an attempt to negotiate which is headed "without prejudice", except when it comes to costs.
· Check the legal position before issuing proceedings. Although the procedure is generally informal, the law is not. The judge has to apply the letter of the law, even in a small claims track case. Normally it is not enough for someone to have behaved unfairly. There has to be a law giving the wronged person the right to take proceedings. Get advice from a Citizens Advice Bureau or a solicitor, or look up the law at your local library.
· Contact your local county court - the address is in the phone book - to obtain the forms you need and then fill out Form N1 - the court form most commonly used to start a small claims track case. Take it or send it with the necessary number of copies and a cheque for the issue fee to the county court. Always quote the case number that the court will give you in correspondence with the court.
· Try to be familiar with the rules governing the small claims track procedure. You can download a copy of Civil Procedure Rule 27 and its Practice Direction from the Lord Chancellor's web site www/lcd.gov.uk. Alternatively, read the Court Service booklet, The Small Claims Track, available free from all county courts, or obtain a book on the small claims procedure, such as District Judge Patricia Pearl's helpful Small Claims: Practice and Procedure, (Professional Publishing, 2000, £18). It may also be a good idea to ask the court for details of days when other small claims track cases are being heard so that you can sit in and watch - but remember that judges may follow different procedures in different cases.
· Make sure that you read all documents that you receive from the court carefully and comply with any directions made by the judge. When allocating cases to the small claims track, judges generally make orders that are posted to the parties about the preparation and exchange of documents. In particular make sure that you have sent the court and the other side photocopies of all documents and letters that you want to rely upon well in advance - and bring spare copies to the hearing as well, in case they have gone astray.
· On the day of the hearing arrive at court at court early. Although court hearings often involve waiting and hanging around, litigants who arrive late for hearings may find that their claims have been dismissed and that they have lost in their absence.
Nic Madge
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