A time bomb waiting to explode
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28 November 2013
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5 May 2014
The Woolf report's proposals for small claims may cause problems, says John Lymbury
Woolf Report on Civil Procedure. I particularly welcome those that relate to the smoothing of procedures, the shortening of endless disclosure and discovery, and the "case management", which is clearly designed to bring matters to trial more quickly than hitherto.
In fact anything that removes the present anomaly between High Court and County Court Rules and which makes the litigation process simpler, cheaper and more efficient must be to the advantage of the profession as a whole.
However, I can see a hidden explosive - the raising of the small claims procedure threshold from £1,000 to £3,000.
I can understand why his Lordship felt that raising the threshold may be a sound principle as low value litigation is often totally counter productive. But in many areas of the country, particularly the rural and small urban areas, sums in the £2,000 to £3,000 range are not regarded as petty, which they may be in the larger and more commercially-oriented cities.
Indeed in my small practice during the average year I deal with a very substantial number of relatively small claims, many of which fall within the £2,000 to £3,000 category but which for the client are very important. Moreover, the threat of a costs order against a losing party serves as an extremely useful lever to achieve settlement by both the plaintiff and the defendant.
If that costs 'sanction' is removed it will open the floodgates of persistent litigation over relatively small issues by litigants in person. Their efforts, while being noble and worthy, may well serve to clog up the system in the County Court rather more effectively than may be the case at present.
The most serious aspect, however, is the knock-on effect on the Legal Aid Board. As we all know, except in very rare cases, legal aid is simply not available to assist litigants whose cases fall within small claims procedure.
That is all very well for genuinely small items, but for those who do have potential litigation which has genuine merits - even at the lower levels - it seems likely that a very large number of people are now going to be removed from the legal aid system. While this possibility may well please the Lord Chancellor, whose clear political duties are to put a brake on unreasonable expenditure, it is unlikely to be seen by the public in the same light.
As it is, a great deal of injustice occurs now because the present limit prevents people from obtaining legal aid to pursue small claims. What is the system going to be like when that limit has been trebled?
I do not believe that the Woolf Report has reflected fairly on the needs of a large number of litigants who fall within the categories I am writing about.
In fact, I think that the proposed system will, if put into effect, be perceived as depriving year many thousands of people each year of what they consider to be 'justice'.
It is true that litigants who feel particularly strongly will still have the privilege (if that is what it is) of conducting their own cases, and it may be that encouraging self representation was partly the intention of the report.
However, by and large, litigation is helped by solicitors rather than hindered by them, particularly in deserving cases where litigants may not have the ability or the courage to conduct their own cases.
Much has been said already about the possible knock-on effects which will occur with defendants in mortgage possession cases where arrears do not exceed the £3,000 limit. I suspect people in that category are going to be at a disadvantage unless the legal aid rules allow them to continue to be represented, either on some form of limited certificate or at least on a fixed-fee basis.
I urge all who carry out relatively low value litigation within their practices (or have a department which does so) to give serious thought to these matters and to respond to the proposals with directness, with vigour and, most importantly, with conviction.
John Lymbury is national vice president of the sole practitioners group.