Raising the roof may bring the house down

The Lord Chancellor's decision to increase the small claims limit from £3,000 to £5,000 may prevent access to housing law for those that need it most, argues Vicki Chapman. Vicki Chapman is head of policy at the Legal Action Group.

Plans to raise the small claims limit from £3,000 to £5,000 may be good news for articulate consumers suing holiday companies and car dealers, but raising the limit across the board could seriously disadvantage poorer housing tenants with more complex cases.

For some litigants, the small claims court has distinct advantages. Offering a relatively simple method for the resolution of disputes, it is both cheap and accessible to people unfamiliar with the legal system.

Many disputes do not involve the legal or factual complexity that would lead to a need for parties to use lawyers.

However, in accepting that the limit for personal injury cases should remain at £1,000, the Lord Chancellor has acknowledged that there is no correlation between value and complexity. There are certain types of case that are, by their nature, unsuitable for the small claims jurisdiction.

Housing law, like personal injury, is complex. A range of statutory and common-law provisions apply in any case. Cases frequently involve pleading different causes of action under different statutory provisions, as well as turning on complex facts that may well be in dispute.

In disrepair cases there will be a need for expert evidence, to identify the nature of the problem. In many cases there will be a need for an order for specific performance or an injunction. In cases where the tenant is a defendant, there may well be a counter-claim for damages.

Often, those needing to enforce these rights are economically, socially, and intellectually disadvantaged, some suffering with mental health problems. Many vulnerable tenants will be daunted by the prospect of facing their landlord in court without representation.

The complexity of housing cases and the need to commission and assess expert's reports, draft the claim and arrange for experts and witnesses of fact to attend court means that, like personal injury, housing claims over £1,000 are too complex to expect litigants to prepare and present alone.

Research commissioned by the Lord Chancellor's Department (LCD), at the time of the increase from £1,000 to £3,000 in January 1996 shows that some litigants have benefited.

However, it also highlights some of the limitations of the small claims procedure.

The small claims system offers a simplified procedure, but not simplified law. Many of litigants do not seek legal advice, failing to grasp what it means to prove their case according to legal principles and, as a result, they are often ill-prepared.

Because the small claims forum is meant to offer a speedy, cheap, system of justice, this problem is exacerbated by district judges' reluctance to adjourn cases.

The result is that judges are often faced with trying to reach a decision on the basis of inadequate evidence. Ensuring that litigants have access to competent legal advice is crucial.

The LCD should begin to develop a network of independent court-based advice schemes, where legal advice could be offered on the merits of a case.

Litigants should be encouraged by court staff and through the literature sent with court forms to seek advice before filing a claim or defence.

In addition, the LCD should pilot the use of electronic kiosks as a way of providing information about the small claims procedure.

The small claims procedure is informal, and district judges are expected to take an interventionist role to assist parties appearing in person to present their case. This has led to different approaches being adopted by district judges.

It is essential to ensure a consistency of judicial approach through regular training and through the publication of information about the procedure to be adopted and guidelines for judges, so that they are at least working to the same ground rules.

Open hearings would enable the better monitoring of the conduct of cases, and would also assist litigants nervous about taking a small claim who wanted to see how a hearing would be conducted. Hearings could still maintain their informality in the relaxed atmosphere of judges' chambers but, as a matter of principle, they should be public unless there is a good reason why not.

The small claims procedure offers an appropriate venue for some litigants to resolve some types of dispute. However, any extension must exclude areas inherently unsuitable for the do-it-yourself small claims arena, and there must be investment in advice provision to ensure that the system is working efficiently and effectively for users and potential users.