The World Bank 2159 M X n | I I II II | 1 ~~~~~2000 * .i i L Rnotes NUMBER 40 PUBLIC SECTOR Access to justice: the English FILE COPY experience with small claims The simplified procedures of the English small claims system permit legal redress in sit-uations where formal litigation would be too costly. But while the procedures offer access to justice, they also illustrate the difficulties that informal dispute resoutLassume sole responsibility not judges, who argued that it would enhance access to justice (,(! F p1 u1 paring tlhcir cases but also tor access to civil courts. The government prcS-'iting them illn court. Adjudicators. agreed, perhaps mindful that this move nlcialmril, has e wile latitude in the meth- would also keep in check spending on legal odls [hev use. Indeed, in England adjudi- aid. In 1998 the limit was raised again, to cators alre allowed to nse whatever method £5,000 ($8,300). At this level, England's small o 1 jrocc eding at a hearing they consider claims limit is among the highest in the io Ibe Ibi, world. ,.^-iIc and WtVales introduced small England's experience shows the poten- CIw lI l1 pr o0CCedlures in 1973. For the first 20 tial of smnall claims procedures in expand- >lr. nisill. claims, the official approach ing access to justice. While such informal a. e idc(lh imodlest. A specialized small mechanisms may not provide the refined eainis f qiurt. as exists in soine otlher coun- proceduires one expects in a formal court tri .t,as not established. Instead the pro- svstem, without them many otherwise mer- (t'kbii.r SCre grafted onto the existing itorious claims could go unresolved. Thus mmtx court structure, with proceedings policymakers in developing countries may lc0p dttucted iii juiges' chambers rather than wish to consider whether introducing infor- In c courtrooms. The small claims limit mal mechanisms like small claims proce- nm.ts st- ill 17b73 at £75 ($175), a very lowv dures, within or outside the formal court )Ei, al I ndaised onl four occasions in the structure, would enhance their citizens' otu, 2)'v ears to keep pace with inflation. access to justice. FROM THE DEVELOPMENT ECONOMICS VICE PRESIDENCY AND POVERTY REDUCTION AND ECONOMIC MANAGEMENT NETWORK Advantages of small claims lish judges have succeeded in providing a procedures standard of justice acceptable to most liti- Small claims procedures have many advan- gants. While both points are largely trtle, 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 unresolved costs of the winning parties. In England, problems with them. as in most countries, the prevailing party in a civil lawsuit is generally entitled to reim- Inadequate preliminary legal advice bursement for expenses incurred during However informal they might be, small the course of the litigation. Because this claims hearings are still legal proceedings. includes attorneyfees, an award of costs can Although some English judges say that in prove financially ruinous, even when the small claims they will occasionally turn a Most lay litigants sums at issue are relatively small. Research blind eye to the law in the interests of in 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 be difference to litigants' perceptions of legal applied in resolving these claims. That hearings over proceedings. means that small claims litigants need an Second, based on interviews with sev- assurance before the hearing that their formal 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 know this unaided-or indeed, to know how 1). The average litigant in England makes they should go about establishing a legal no demand for a refined brand ofjustice. claim (or a defense) or arguing a legal case Instead, people are more likely to be sat- in court. Lay litigants frequently arrive in isfied 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 need itative adjudicator, and if they feel that they preliminary advice, provided at reasonable have been able to participate effectively in cost, about whether their case is likely to proceedings. In marked contrast to tra- stand up in court. ditional court procedures, the small claims system can be said to score highly on these Wide variations in judges' approaches measures. Given the great latitude granted to judges Third, most districtjudgeswho hear small in resolving small claims, it is no surprise claims cases appear to be willing and able thatjudges adopt very different approaches to adapt to the spirit of informality required and methods. Somejudges say that thev "go at such hearings. Observations of civil courts for the jugular" at hearings, requiring the throughout England and Wales show that parties to restrict themselves to the key legal most 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. Still to encourage them to present their cases others seek mediated settlements between intelligibly 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 directlywith ferent attitudes about how much they felt lay parties. bound to apply the ordinary law in small claims. Yet if consistencv and certaiitv Problems with small claims are fundamental requirements in a civi- procedures lized system of judicial administratioin, it These results suggest that England's small cannot be right that judges, sometimes claims 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 Res/onose to the suggZestion Number Percentagea Entlhusiastic 86 52 Sympathetic 43 26 Lukewarm or equivocal 18 11 Opposed 17 10 Ulnkiown or no view expressed 14 Total 178 a. Per( entage of those with ani opinion. S,ur n: Baldwin 1997a. U'ndefined role of lawyers Access to justice The use of small The 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 procedures in England and remains problematic. Many facing simple everyday legal disputes, with judges do not welcome the participation mechanisms throughwhichheorsheisable should not be of 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 expanded This 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 en forrcement ofjudgments Although this mio-ht be appropriate and Many juitisdictionis have experienced seri- acceptable for a limited range of disputes ous problems in the enforcement of civil involving small sums of money, applying jtudgments-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, pavment. One-third received nothing at the key is to design a civil justice system all. that provides costs and procedures that are Plaintiffs 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- Alth ough 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 Royce justice: it is no access tojustice bility and integrity of civil courts. at all. PREMNOTE 40 MAY 2000 Further reading Woolf, Lord. 1995. Access toJustice: Interim Baldwin,John. 1997a. "Monitoring the Rise Report to the Lord Chancellor's Department of the Small Claims Limit: Litigants' Expe- on the CivilJustice System in Enigland and rience of DifferentForms ofAdjudication." WZVales. London: Her Majestv's Stationery Research Series 1/97. Lord Chancellor's Office. Department, London. T'his note was wTitten by John Baldwin (Direr- 1997b. Small Claims in the Countly toy; Institute ojjudicial Administration, Uni- Courts: The Bargain Basement of Civilfus- versity oj Birmingham, England). tice? Oxford: Clarendon Press. If you are interested in similar topics, consider National Audit Office. 1996. HandlingSmall joining the Legal Institutions Thematic Groiup. Claims in the County Courts. London: Her Contact Richard Messick, x 87942, or click on Majestv's Stationery Office. Thematic Croups on PRElMnet. W\7helan, Christopher, ed. 1990. Small Claims Courts: A Comparative Study. Oxford: Clarendon Press. 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