EUROPEAN SMALL CLAIMS PROCEDURE (10160/06)
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland, Parliamentary Under Secretary of State,
Department for Constitutional Affairs
Thank you for your letter of 5 July
and for submitting a copy of the latest text of the Regulation
under cover of an Explanatory Memorandum. The latter is brief
in explaining the main changes that have been made since the Committee
last examined the proposal. However, in light of the more detailed
explanation given in the Government's Response we have proceeded
to examine the new text. There are a number of points on which
we would welcome clarification.
First, we note that the new procedure will not
apply to "the liability of the State for acts and omissions
in the exercise of State authority (`acta iure imperii')"
(Article 2(1)). What is the purpose of this exclusion? What would
be covered by the term "acta iure imperii"? We
would be grateful if you would give examples.
We note that a new article (Article 4(a)) has
been included to deal with the question of languages. The practical
effect of this would seen to be that if, for example, a party
is suing in England and the documents have to be served on a Lithuanian
in Lithuania, then the defendant can require the documentation
to be translated into Lithuanian even if he fully understands
English. In the Government's Response, you say that you are continuing
to explore possible solutions to the problem of languages and
that the forms could be designed to reduce the need for translation
eg by the use of tick boxes. But we find very little, if any,
evidence of the latter in the forms you have submitted for scrutiny.
Further the extent of the obligation in Article 4(a)(2) remains
unclear. What progress is being made in relation to this most
important aspect of the procedure?
In several instances express reference is made
to national law in order to overcome the absence of common definitions
or procedures (see eg Recital 8(b)). Further, as a general rule
national law will apply to the procedure (Article 17). However,
it is not clear from Article 7 that national law will govern the
admissibility of evidence. The reference in the first sentence
of Article 7(1), in contrast with a number of other provisions,
makes no reference to national law.
As you will recall, we have questioned the effect
of Article 9 on established rules of English and Scottish law
relating to the determination and proof of applicable law. Article
9(2) now provides that the court shall not require the parties
"to make any legal assessment of the claim". A footnote
says that legal assessment shall be translated into French as
"qualification juridique". It is our understanding
that under the French civil system various courses of action are
set out, contract of sale, contract of services etc in specific
articles of the Civil Code. Identifying the "qualification
juridique" is the process of attaching a particular label
to a set of facts, for example when it is decided on the facts
presented that the case is concerned with the contract of sale.
It would be helpful if you could provide a detailed note on what
you believe Article 9(2) means in the context of English and Scottish
procedures. We are mindful that the ESCP will be contained in
a Regulation, not a Directive. Therefore, ultimately it will be
the European Court of Justice who will determine what obligations
lie on the court pursuant to Article 9. It would also be helpful
if in your note you could explain in more detail the nature of
the obligation under Article 9(3), "the duty to inform parties
about procedural questions".
As regards the forms, we have already noted
the absence of tick boxes. We also note the absence of any explanatory
information relating to Form C (contrast the guidelines, such
as they are, relating to Form A). Article 4(2) and (3) refer to
standard Form D. Should this not be Form C? You will also recall
that the Committee recommended that the claim form include a reference
to ADR. The Government agreed to consider this suggestion. Have
you raised it in your discussions with other Member States? What
have been their reactions? Finally, we look forward to receiving
a copy of Form E.
The Committee decided to retain the proposal
25 July 2006
Letter from Rt Hon Baroness Ashton of
Upholland to the Chairman
Thank you for your letter of 25 July 2006 in
response to my letter of 5 July updating the Committee on the
progress of negotiations on the European Small Claims Procedure.
Having considered the revised text you have indicated that there
are a number of points on which you would welcome clarification.
The amendment under Article 2(1) specifies that
the Regulation should not apply to the liability of the State
for acts and omissions in the exercise of State authority (acta
iure imperii). Some States were keen to ensure that default
judgments should not apply to these acts. Further, as such a provision
had been included in the European Order for Payment Regulation
it was argued that there was no reason why it should not be included
in this Regulation.
As I have explained to the Committee in the
contect of other proposals the Government is of the view that
the effect of this exclusion is very limited as most, if not all,
acts this wording would cover do not fall within the meaning of
civil and commercial mattersand, what is more, it is improbable
that they would be the subject of small claims. Its inclusion,
however, is a matter of political importance to several Member
I now turn to your observations on the application
of Article 4(a) in respect of languages. The clear understanding
and intent of the negotiations on Article 4(a) 3 was that it would
apply in the same way as Article 8 of the Service Regulation.
The purpose of the word "either" is to indicate that
a party can only refuse to accept a document if the document is
not either in a language he understands or the language of the
Article 4a(2) should ensure that any additional
exposure to costs is limited to where a court is of the view that
the translation of a particular document is required, so only
necessary documents will be translated. This is important in facilitating
access to justice in the cross border context, ensuring a level
playing field for all parties involved, and, in this instance,
allowing parties to ask for evidence that they do not understand
to be translated.
On Article 7, you say that the text makes no
explicit reference to the national law as being the law governing
admissibility of evidence. We think it is nonetheless clear: the
instrument itself makes no rules as to admissibility of evidence,
and, as you rightly point out, Article 17 has the effect of making
clear that national law will apply where the instrument is silent.
You have asked me for a detailed note on my
interpretation of Article 9(2) in the context of English and Scottish
procedures. When a legal claim is formulated, one begins with
the facts, and then one applies legal analysis to those facts.
This analysis fits the facts into a legal framework, from which
it can be decided whether or not the facts rise to legal liability
and, if so, what remedies might be available. That process is
similar to the one you describe in your observations concerning
the French expression qualification juridique. The meaning
of article 9(2) is therefore that, when starting proceedings under
the ESCP, the claimant will be required only to state the facts,
not the legal analysis of those facts.
On the nature of the obligation under Article
9(3), the objective is to ensure that parties, especially ones
which are unrepresented, have sufficient knowledge of the procedures
involved in order to participate in the proceedings on an equal
basis. We do not foresee this giving rise to difficulties in the
UK, where judges are used to giving rise to difficulties in the
UK, where judges are used to giving appropriate guidance to unrepresentated
parties as to the procedure.
With regards to the forms within the revised
text, the July meeting was the first occasion at which the forms
had been discussed in detail. The Presidency had produced draft
forms for that meeting based on those for the European Order for
Payment. We, in conjunction with other Member States, have argued
that such forms are unsuitable to be completed by litigants in
person and small businesses and others. Nor did we consider the
guidance for the claimant or defendant adequate.
The forms were subject to considerable amendment
following discussions within the Council Working Group. I enclose
a copy of the Finnish Presidency's revised text that incorporates
these changes. We take the view that, although the new drafts
are a significant advance on the originals, there remains room
for improvement when the forms and guidance notes are revisited
in September to ensure that they are consistent with the aims
of a simplified procedure. To this end the UK will be submitting
a paper to the Working Group together with new draft forms for
consideration including improved guidance and more use of tick
boxes to avoid the need for translation. We will also raise the
Committee's suggestion that there should be a reference to ADR.
The error in relation to the letters ascribed to the forms in
Articles 4(2) and (3) to form D has been identified will be rectified
to reach form C and there has been agreement to delete form D
30 August 2006
156 Government Responses, Session 2005-06, HL Paper
182, p 89. Back