The World BankMAY

2000

P 20 SNUMBER 40

PUBLIC SECTOR

Access to justice: the Englishexperience with small claimsThe simplified procedures of the English small claims system permit legal redressin situations where formal litigation would be too costly. But while the proceduresoffer access to justice, they also illustrate the difficulties that informal disputeresolution mechanisms can pose.

Small claims procedures provide a mech- By the mid-1990s the limit stood at £,000 England's experienceanism by which legal disputes involving ($1,600).

small sums of money can be resolved with- But in recent years the position of small shows theout disproportionate expense. In most claimswithin the English civi1justice system

small claims proceedings, hearings are has been transformed. It has moved out of potential ofmuch more informal than in traditional the backwaters and now provides the dom-

civil court hearings. An "interventionist" inant method by which the courts resolve small claimsadjudicator is expected to help the parties contested civil actions. This fundamental

present their cases, and there is little or no shift began in 1996, when the limit on small procedureslegal representation. claims was tripled. That decision followed

These proceedings provide a rough-and- an inquiry into the civil justice system by in expandingready brand of justice, where laypersons Lord Woolf, one of England's most senior

commonly assume sole responsibility not judges, who argued that it would enhance access to justiceonly for preparing their cases but also for access to civil courts. The government

presenting them in court. Adjudicators, agreed, perhaps mindful that this move

meanwhile, have wide latitude in the meth- would also keep in check spending on legal

ods they use. Indeed, in England adjudi- aid. In 1998 the limit was raised again, to

cators are allowed to use whatever method £5,000 ($8,300). At this level, England's small

of proceeding at a hearing they consider claims limit is among the highest in the

to be fair. world.

England and Wales introduced small England's experience shows the poten-

claims procedures in 1973. For the first 20 tial of small claims procedures in expand-

years of small claims, the official approach ing access to justice. While such informal

was decidedly modest. A specialized small mechanisms may not provide the refined

claims court, as exists in some other coun- procedures one expects in a formal court

tries, was not established. Instead the pro- system, without them many otherwise mer-

cedures were grafted onto the existing itorious claims could go unresolved. Thus

county court structure, with proceedings policymakers in developing countries may

conducted injudges' chambers rather than wish to consider whether introducing infor-

in formal courtrooms. The small claims limit mal mechanisms like small claims proce-

was set in 1973 at £75 ($175), a very low dures, within or outside the formal court

level, and raised on four occasions in the structure, would enhance their citizens'next 20 years to keep pace with inflation, access to justice.

FROM THE DEVELOPMENT ECONOMICS VICE PRESIDENCY AND POVERTY REDUCTION AND ECONOMIC MANAGEMENT NETWORK

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Advantages of small claims lish judges have succeeded in providing aprocedures standard ofjustice acceptable to most liti-Small claims procedures have many advan- gants. While both points are largely true,tages over traditional civil litigation. First, the success of small claims courts in Eng-losing parties are not required to pay the land should not obscure some unresolvedcosts of the winning parties. In England, problems with them.as in most countries, the prevailing partyin a civil lawsuit is generally entitled to reim- Inadequate preliminary legal advicebursement for expenses incurred during However informal they might be, smallthe course of the litigation. Because this claims hearings are still legal proceedings.includes attorney fees, an award of costs can Although some Englishjudges say that inprove financially ruinous, even when the small claims they will occasionally turn a

Most tay litigants sums at issue are relatively small. Research blind eye to the law in the interests ofin England shows that removing the threat "doing justice," there is nonetheless a

favor informal of having to pay costs makes an enormous requirement that legal principles bedifference to litigants' perceptions of legal applied in resolving these claims. That

hearings over proceedings. means that small claims litigants need anSecond, based on interviews with sev- assurance before the hearing that their

format court eral hundred litigants, it appears that most cases have legal validity.lay litigants favor informal hearings over They cannot, however, be expected to

processes formal court processes in civil courts (table knowthisunaided-orindeed, toknowhow1). The average litigant in England makes they should go about establishing a legalno demand for a refined brand ofjustice. claim (or a defense) or arguing a legal caseInstead, people are more likely to be sat- in court. Lay litigants frequently arrive inisfied with court decisions if they can under- court empty-handed and fail to bring rele-stand them, if they accept that they have vant evidence and witnesses (or indeed, any-been made by an independent and author- thing at all) to hearings. Litigants needitative adjudicator, and if they feel that they preliminary advice, provided at reasonablehave been able to participate effectively in cost, about whether their case is likely toproceedings. In marked contrast to tra- stand up in court.ditional court procedures, the small claimssystem can be said to score highly on these Wide variations in judges'approachesmeasures. Given the great latitude granted to judges

Third, most districtjudges who hear small in resolving small claims, it is no surpriseclaims cases appear to be willing and able thatjudges adoptvery different approachesto adapt to the spirit of informality required and methods. Somejudges say that they "goat such hearings. Observations of civil courts for the jugular" at hearings, requiring thethroughout England and Wales show that parties to restrict themselves to the key legalmost judges know how to intervene effec- issues. Otherjudges allow the parties to pre-tively, how to put laypersons at ease, and how sent their cases in any way they wish. Stillto encourage them to present their cases others seek mediated settlements betweenintelligibly and to good effect. Mostjudges the parties.seemed to enjoy the immediacy of the occa- judges interviewed also expressed dif-sion and to relish having to deal directly with ferent attitudes about how much they feltlay parties. bound to apply the ordinary law in small

claims. Yet if consistency and certaintyProblems with small claims are fundamental requirements in a civi-procedures lized system ofjudicial administration, itThese results suggest that England's small cannot be right thatjudges, sometimesclaims procedures are working remarkably in adjacent courtrooms, adopt such dis-well. They also give the impression that Eng- parate approaches.

PREMNOTE 40 MAY 2000

TABLE 1 RESPONSES OF ENGLISH LITIGANTS INVOLVED IN FORMAL TRIALS TO

POSSIBILITY OF MORE INFORMAL PROCEDURES

Response to the suggestion Number Percentagea

Enthusiastic 86 52Sympathetic 43 26Lukewarm or equivocal 18 11Opposed 17 10Unknown or no view expressed 14Total 178

a. Percentage of those with an opinion.

Source: Baldwin 1997a.

Undefined role of lawyers Access to justice The use of smallThe appropriate role for lawyers in infor- The litmus test of any civil justice system

mal hearings like small claims is unclear is whether it provides the average citizen, claims proceduresin England and remains problematic. Many facing simple everyday legal disputes, with

judges do not welcome the participation mechanisms throughwhich he or she is able should not beof legal representatives because it inhibits to secure redress. Considerable progress

them from playing an interventionist role. has been made in England and Wales, and hastily expandedThis is particularly so in cases where one in many other countries, in providing access

of the parties is represented and the other to civil courts to those involved in such

is not. disputes. Adaptations to traditional litiga-

Again, the approach of judges varies tion procedures seem largely to have suc-

widely. Some allow lawyers to play a full part ceeded in allowing laypersons to present

in hearings, while others sideline them, their cases in a satisfactory and competent

addressing questions directly to the parties. manner.

With the dramatic rise in the small claims But small claims procedures are not infi-

limit in England, legal representation is nitely elastic, and their use should not

becoming more common. Thus further be hastily expanded in place of formal

thought needs to be given to defining the court proceedings. Small claims proce-

role of lawyers. dures, entailing do-it-yourself represen-tation, provide "bargain basement"justice.

Ineffective enforcement ofjudgments Although this might be appropriate andManyjurisdictions have experienced seri- acceptable for a limited range of disputes

ous problems in the enforcement of civil involving small sums of money, applying

judgments-and small claims in England the procedures in inappropriate circum-

are no exception. Only about one-third stances-as where large sums of money

of successful small claims plaintiffs are at stake or complex legal points arise-

received the payment ordered by the court runs the serious risk of producing unjust

on time. Most had to take further action results.

(and incur additional expense) to secure If greater access tojustice is the objective,

payment. One-third received nothing at the key is to design a civil justice system

all. that provides costs and procedures that arePlaintiffs in civil actions involving more realistic and proportionate to the issue in

formal court procedures fared little better. dispute. Calls from legal purists for an unre-

Although a committee has been appointed alistic level of legal refinement should be

in England to examine these problems, ignored, as they will restrict access to the

they will not be easy to overcome. More courts to the wealthy. For most lay litigants,

than any other factor, ineffective enforce- the alternative to cut-price solutions is not

ment procedures undermine the credi- Rolls Roycejustice: it is no access tojusticebility and integrity of civil courts, at all.

PREMNOTE 40 MAY 2000

Further reading Woolf, Lord. 1995. Access tojustice: InterimBaldwin,John. 1997a. "Monitoring the Rise Report to the Lord Chancellor's Department

of the Small Claims Limit: Litigants' Expe- on the CivilJustice System in England andrience ofDifferent Forms ofAdjudication." Wales. London: Her Majesty's StationeryResearch Series 1/97. Lord Chancellor's Office.Department, London. This note was written byJohn Baldwin (Direc-

. 1997b. Small Claims in the County tor Institute ofJudicialAdministration, Uni-Courts: The Bargain Basement of CivilJus- versity of Birmingham, England).tice? Oxford: Clarendon Press. Ifyou are interested in similar topics, consider

National Audit Office. 1996. Handling Small joining the Legal Institutions Thematic Group.Claims in the County Courts. London: Her Contact Richard Messick, x 87942, or click onMajesty's Stationery Office. Thematic Groups on PREMnet.

Whelan, Christopher, ed. 1990. Small ClaimsCourts: A Comparative Study. Oxford:Clarendon Press.

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