Is Access to Justice too slow in the Small Claims Court?
By Carla Jones
Recent reports have demonstrated that small claims are now taking longer than ever before to reach a point of resolution.
The Ministry of Justice looked at the period covering January to March 2019 and found that the average small claim took 36.9 weeks to get to the point of Trail.
Whilst that may seem like a relatively short time period when compared to a Multi-Track matter (which take an average of 58.5 weeks to come to Trial), it is important to remember that small claims are often run by individuals (without legal representation) meaning that people are often “going it alone” for well over half a year! In addition the difference in complexity, level of work required and value between a Small Claim and a Multi-Track matter is vast, meaning that a difference of only 21 weeks seems ludicrous.
The fact that parties to Small Claims cannot recover solicitors’ fees was a step taken to try to ensure that these cases were dealt with at a proportionate cost and to enable everyone to have access to justice, even for low value claims. But with ever increasing delays in getting a result one could argue that the complete barrier on solicitors’ fees results in access to justice being threatened more than ever before because people will either have to take on 8 months of litigation alone or put money towards legal fees which they will never recover.
It is unlikely that there is any one reason for the increase in the life of Small Claims but contributing factors are likely to include; staff shortages within the administrative teams at Courts, greater demands on Judge’s time and, perhaps most importantly; more claims being issued.
In addition to the above, and perhaps more worryingly recent findings suggest that as well as more claims coming before the Court, there is also a downward trend in parties cooperating. If there are more cases being issued with the Court but parties are cooperating less than ever before it seems like the upward trend is only set to continue.
The same Ministry of Justice report found that in just 54% of cases both parties had legal representation, a statistic which demonstrates that there is a growing trend for people to represent themselves in proceedings.
Perhaps parties who choose to represent themselves are too emotionally involved in the case at hand to consider a commercial settlement or to cooperate fully with the other party, but it is always important to remember that the backbone to our legal systems is one promoting openness and one which sees negotiations between the parties throughout the life of a claim as a crucial element. In fact we are seeing a growing trend of parties being penalised by the Courts if they have failed to consider Alternative Dispute Resolution (mediation, arbitration etc) without a very good reason.
The issue of unrepresented litigants is causing a problem for the Courts because so many more cases are coming to trial. 16,000 claims went to trial in the first 3 months of 2019 – which is an increase of 8% year-on-year. Multi and fast track trials were also up 15% to 4,800.
Taken together the above statistics and recent findings paint a worrying picture for Small Claims access to justice in our Courts. These matters are often low value (anything from £1 to £10,000) and the Court delays mean that parties are likely to be embroiled in litigation for over 8 months. This is 8 months of time that a small business owner may be distracted from the day to day running of their company. It is 8 months in which an individual constantly deals with the stress of Court proceedings. If this trend continues it seems inevitable that people will be dissuaded from issuing Claims due to the severe delays encountered and if that happens access to justice in Small Claims matters will be seriously undermined.