Evidence submitted by Laurence E St Lyon,
Solicitor
I am a Solicitor in Private Practice with a
high street firm with a mix of LSC and privately funded clients.
I wish to make the following, personal, observations on the operation
of the "Small Claims" regime.
1. ACCESS TO
JUSTICE
It has been my experience that far from encouraging
access to justice it inhibits it. The inability to have your legal
costs paid by the other side if you win often puts client that
I see in a lose-lose situation. It denies, often vulnerable, clients
of access to justice. It is a fact that the majority of Litigants
in Person are ill equipped to formulate their claim in the correct
manner or present it properly in court.
The recent introduction of the Tailored fixed
fee scheme for legal aid means that we no longer have the time
to assist clients by drafting papers or advising them on formulating
their claim. Sadly we have to turn people away as its just not
costs effective to us to use precious matter starts in this manner.
We try to provide some assistance pro-bono but we already do at
least one hours unpaid work for every two hours paid work we do
on the files that are funded by the LSC.
I have seen figures quoted of 70% of unrepresented
litigants losing their cases in the employment tribunal. From
my experience and from talking to other colleagues in my area
a similar figure must hold true in the Small Claims Court.
2. SIMPLICITY
AND FORMALITY
Whilst simple in comparison to its predecessors
the fact that it is a legal process inhibits many individuals.
In point of fact the supposed simplicity is a fallacy. Cases still
require to be properly and adequately pleaded and the need to
retain control of the court process itself inflicts a certain
degree of formality.
This is often beyond the ability of the individuals
whose claim is allocated to the Small Claims Track. People are
nervous enough just going into court.
3. EFFECTIVE
AND EFFICIENT
OPERATION
By definition any system which restricts access
to justice is not effective or efficient. The current system has,
according to a discussion I have had with a senior Circuit Judge
placed an additional burden on the DJ's and, again through discussion
with court staff, on their support staff.
This system cannot be run efficiently if there
is a lack of proper legal advice and assistance from the beginning.
Judges are there to judge not legally advise the litigant. Neither
are the support staff who often bare the brunt of when the frustrations
of the litigant in person, be they Claimant or Defendant, boil
over.
Among solicitors and Barristers that I have
spoken to is the feeling that being against a litigant in person
imposes a severe constraint on the ability to represent your client.
While you do not have a duty to the other side neither do you
wish to be seen as taking advantage of an unrepresented party.
To be seen to do so, even when that is not the case, is to find
yourself fighting the judge. From personal experience this is
an unhappy situation that serves neither the parties, the system
nor justice herself.
I am ashamed to admit that I have seen cases
where the advocate was not so scrupulous and was allowed to get
away with it. I have also had many complaints from people who
felt excluded as the Judge and the Barrister/Solicitor sorted
the matter out amongst themselves and informed them of the decision!
4. PROPER ALLOCATION
OF CASES
The experience on the ground is that cases are
being allocated totally on the basis of their value without reference
to the legal or factual complexity of the individual matter.
There should be a requirement to take into account
the need for assistance by the individual litigants in the allocation
process. How can an illiterate gypsy woman be expected to pursue
her (genuine) claim against a rich businessman who can afford
a solicitor when she cannot understand the paperwork or the arguments.
All she knows is she has been taken advantage of.
I see such matters on a fairly regular basis.
But our scope for pro-bono is limited if we are to survive as
a firm. Allocation to the small claim track is the kiss of death
to a file. This is a commercial reality. My firm is not the only
one in this position.
5. FINANCIAL
LIMITS
The financial limits should be abolished. £5,000
may not be much to government minister but its a lot of money
to the small people who come through my door.
I would recommend the limit being abolished
as fixed rule and given as a guideline only. The allocation exercise
should take into account the following:
(1) Is the value of the claim sufficient
to require allocation to one of the other tracks?
(2) Does the matter itself involve the need
for legal argument or involve complicated issues of fact or law?
(3) Is the Claimant and or Defendant able
to properly represent themselves and present their case taking
into account their personal situation?
(4) If one of the parties is legally represented
is the matter such that this provides an inequality of arms and
a denial of Justice?
6. GENERAL OBSERVATIONS
The Small Claims system cannot be examined in
isolation but must be examined in the light of the diminishing
legal help and advice available.
Many solicitors are looking to give up legal
help work or we are forced to husband a limited amount of matter
starts. The CAB's are massively oversubscribed and, while many
are very good, the quality of advice and assistance does vary
often quite widely.
The current system may assist the operation
of the courts but at only on the basis of a denial of justice
to those who cannot access the courts for financial and/or other
reasons.
There is a growing body of, admittedly, anecdotal
evidence that unscrupulous individuals and companies are providing
shoddy services or goods to consumers in the certain knowledge
that they will not be brought to court because the amounts involved
are below the Small Claims limit. This, of course, does not include
outright scams and fraud which often goes undetected longer than
it possibly would if the parties were brought to court. This in
the long run cannot be good for peoples perception of Justice
in this country.
I cannot claim any great expertise or intellect
on these maters I am merely an ordinary "street lawyer"
and I offer these my observations on the operation of the Small
Claims Track for the committees consideration.
Laurence E St Lyon, Solicitor
T Cryan & Co
September 2005
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