Small Claims in England - Essay Example

?Small Claims in England Introduction In England, according to Bello , the small claims systems was established in 1973, and has three case management tracks. The small claims track is the claims that are less than ?5,000. However, according to a recent Parliamentary debate, the small claims will be increased to ?10,000 – this was proposed by the House of Commons in May 2012 by the House of Commons, and, in addition to this coming change, the process will also be streamlined in that every case that will be in the small claims court will be assessed for mediation, and there will also be bills that will help to protect debtors who have few assets (www.parliament.uk). This is important, because the small claims court is clogged with cases, according to the Bello (2010). There were 84,000 cases that were heard in the small claims court system in 2008, which most commonly include consumer compensation cases for faulty services, faulty goods and personal injury; cases for wages owed; and debt recovery for corporate creditors (Bello, 2010). The purpose of the small claims court, according to Bello (2010) is that they are informal courts – litigants can represent themselves, because the focus is on a process that is easily understandable to everybody. Evolution of the Small Claims Courts The evolution of the small claims court procedures have evolved. In 1973, according to the Bello (2010), the upper limit for the small claims court was only ?75. Obviously, the amount has grown substantially by then, and is going to grow even more. More importantly, the process has been streamlined by the changes in the Civil Procedure Rules which stated that, in 1998, that there would be one set of rules for the civil claims in the high court and the county court, and that there would be special provisions made for small claims. Moreover, there has been a way of resolving claims over the Internet, as the UK Government launched, in 2002, the Money Claims Online (MCO) system, which makes the process of resolving a dispute accessible to everyone (Bello, 2010). Moreover, in addition to these specific reforms for the small claims courts, there have been more generalized reforms to tribunals, due to the Tribunals, Court and Enforcement Act 2007 (HM Courts and Tribunals Service). This TCE Act, according to the HM Court and Tribunals Service, instituted a way of handling reviews and appeals. There is an Upper Tribunal, which decides appeals from the First-tier Tribunal. Each of these tribunals are also split into Chambers, each of which have their own rules and procedures. What this has done, according to the HM Courts and Tribunals Service, is provided a single mechanism by which a litigant may appeal the tribunal's decision. The Upper Tribunal's decision is not final, however, as it may also be appealed to the Court of Appeal (HM Court and Tribunal's Service). Mediation Probably the most important method that is being used to streamline the process of small claims, is the process of mediation. This has made the process cheaper and easier to use, at least in theory. Tagg (2010) explains that mediation in the English and Welsh courts began around 20 years ago with commercial disputes, and around 10 years ago for small claims issues. The rules of mediation are governed by Civil Justice Reforms implemented in 1999, and codified in the Civil Procedure Rules. In the small claims court system, according to Tagg (2010), there were reforms put into place in 2005/2006, in which the Alternative Dispute Resolution (ADR) was made free to users. This is because the low amount of the claims would make paying for mediation not cost-effective. The small claims mediation service, which was implemented in the Manchester County Court after the reforms, was the most effective, and resulted in the greatest satisfaction and settlements. So, this was rolled out across England and Wales, and has since become well-established. This is a voluntary service (Tagg, 2010). The mediation process has some aspects in common, according to Reid (2007). Reid (2007) states that the Department of Constitutional Affairs (DCA) piloted three small claims mediation schemes in three county court – Exeter, Reading and Manchester – from June 2005 to May 2006. The Manchester Court was successful, and it used a mediation adviser, who was funded by the DCA, and whom provided information, made referrals, and offered free mediation. Each of the litigants got a leaflet explaining the procedure and their rights, and the mediation would take place within 15 weeks of the case being filed. The parties got a face to face meeting of up to an hour in the mediator's office, and there was the option of a telephone mediation, which was popular with the litigants. The mediation's elements is that it is voluntary, the mediator is impartial, the parties are empowered to decide the outcome, it is confidential, and is flexible (Reid, 2007). The mediation process, according to Prince (2007) is intended to save time and money for the court and the litigants. This is because the process is intended to make the cases settle in advance of a hearing, which means that the court has fewer cases to hear. Prince (2007) estimates that mediation has saved each court about 121 hours, or 20 working days. What this also means, for the litigants, is that they have their cases heard in a more efficient fashion. Cases are now resolved within 34 days, for this is the average time between filing the case and having it resolved by mediation, according to Prince (2007). For the cases that are not resolved in mediation, according to Prince (2007), there is still a shortened time period between the filing of the case and resolution, for litigants wait an average of 93 days for their case to be heard – this is two weeks shorter than the national target. Evaluation of the Mediation Process Prince (2007) has evaluated the mediation process. She found that it was successful. One of the reasons why is because the parties to the process come into the process thinking that he or she is absolutely in the right, and they always think that they will win the case. This is true for both parties to the dispute, so, obviously, one of the parties was bound to be disappointed in a traditional adversarial process. That said, there was not entirely a way that the litigants would be satisfied with the process – Prince (2007) found that the litigants typically did not understand mediation, and thought that there would be some kind of adversarial process, so they still tended to bring reams of evidence and witnesses to the mediation. They did not understand that it was simply sitting down and talking, and trying to overcome their differences. While the litigants were not entirely satisfied with the process – most of them still wanted their pound of flesh, so to speak, the process was still successful in ensuring that the two parties would come to an agreement, even if the agreement was not entirely mutually acceptable. That said, mediation is voluntary. The case of Halsey v. Milton Keynes General NHS Trust [2004] 1 WLR 3002 states that the parties cannot mediate against their will. This presented some problems. Before the Halsey case, mediation was ordered by the judge in cases that were suitable for mediation. However, after the Halsey case, parties were informed that they did not have to mediate, so many parties just failed to show up for mediation, or telling the court that they were not showing up for mediation, then not showing up for mediation. This problem was resolved by the small claims court in Exeter, who made it clear to the litigants that they were invited to attend the mediations, and if they did not want to attend the mediation, they had to telephone the court at least seven days in advance, and if they did not telephone the court in this time frame, then the case would be dismissed or their pleadings would be struck. This decreased the number of cases that were not mediated substantially. What the benefits are for mediation, according to Prince (2007), include the fact that the parties may fashion a remedy amongst themselves that would not be ordered by a judge. For instance, the parties may decide that one of the parties would perform a personal service for the other party, or that an employee whom has been dismissed shall be hired by an another branch of the firm, or that one of the parties must give a positive employment reference for the other party. Moreover, the cases at Exeter that went through mediation also had fewer problems with enforcement than cases that went before a judge and was litigated. Of the litigated cases before judges, more than one-third of the successful litigants had not received payment within the six months after the judgment was rendered. However, this number has been improved through mediation – only one case out of 88 had issues with enforcement, and this case was because the person who was supposed to pay ended up in prison, so he could not pay. Conclusion Through the years, the small claims courts have evolved to make the process more streamlined, easier to navigate and cheaper to use for the litigants. They also became much less expensive for the courts to maintain. The courts have streamlined the process, so that the appeals procedure is easier to navigate for the litigants, in that there is now a single mechanism for appealing from a tribunal decision. The UK government has also provided for a way for the litigants to settle their cases on-line, and go through the process in the same way. Mediation has been the biggest time-saver, however, because this has been the mechanism that has become the most widely used in the UK courts. Mediation has been successful in making the process of settling a small claim cheaper and faster. Mediation is generally where two parties go before a neutral third party, and these parties are encouraged to settle. The major advantages has been that the court's dockets have become less clogged, which means that the litigants have their cases heard quicker if they choose to litigate their cases, and the litigants who choose mediation generally can have an agreement within one month. This is also less expensive, because the litigants do not have the expenses that are associated with litigation, which might include witness expenses and discovery expenses. Moreover, the mediation process has resulted in satisfactory agreements that would not be possible in court – such as the agreements that one party would perform a personal service for another party. While it isn't perfect – some people still want their day in court, because they are angry, and some people feel that the process robs them of this day in court – the process has streamlined the small claims procedures in England and Wales, so that the entire process is cheaper and easier, and more satisfying. Bibliography Bello, L. (2010) “Small claims, big claims: Consumers' perception of the small claims process.” Available at: http://www.consumerfocus.org.uk/files/ 2010/10/Small-claims-WEB-FILE.pdf Halsey v. Milton Keynes General NHS Trust [2004] 1 WLR 3002. HM Court and Tribunals Service. “History of tribunal reforms.” Available at: http://www.justice.gov.uk/downloads/about/hmcts/tribunals/Tribunals- History.pdf Prince, S. (2007) “Institutional mediation? An evaluation of the Exeter Court small claims medication pilot,” Web Journal of Current Legal Issues, vol. 5, pp. 1-21. www.parliament.uk (2012) “House of Commons Debates 15 May 2012,” Available at: http://www.publications.parliament.uk/pa/cm201213/ cmhansrd/cm120515/debtext/120515-0001.htm Reid, V. (2007) “Small claims mediation: Does it do what it say on the tin?” In Hart, W.G. (2007) Legal Workshop 2007: Access to Justice. London: Institute for Advanced Legal Studies. Tagg, J. (2010) England and Wales. Available at: http://gemme.eu/en/article/download/465/ Read More