Law: Beware of the small claims court. It may be a toothless watchdog

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The Independent Culture
The upper limit for small claims courts is being raised to pounds 5,000 but the system has a problem that few trying to use it may appreciate - judgments can prove difficult to enforce. Grania Langdon-Down considers the courts' future in the light of the Lord Chancellor's approach, and hears one expert's ideas on the way forward.

Ed Jones was owed pounds 900 for some tiling work in a pub. When the publican refused to pay, he went to the small claims court, which found in his favour. But still the man would not pay.

Mr Jones left the matter in the hands of the court bailiffs for several months, without any success. "So I rang the publican and eventually I caught up with him. I said, `Look, I've done it all fair and square, I have been to court and won and all I'm asking for now is my money.'"

The publican hung up and the pub manager threatened to throw him out when he went personally to ask for his money.

"I then got a couple of my `debt collecting' friends and we went back and I got my money. The two guys walked in with lump hammers and basically said to the guy at the bar `You've got the money in the till and, in the time that it takes us to walk from here to the room that I tiled, you had better put the money on the bar or we'll start smashing them up. And after we've smashed them up, you will still have to pay.'

"It had been going on for two years. I felt obliged to take the law into my own hands. They were helpful at the court but there was nothing they could do. I felt like my hands were tied and the girl at court was basically asking me to write the money off."

The tiler's disillusionment highlights growing concern over the enforcement of court judgments. The Lord Chancellor, Lord Irvine, has ordered a review of the current methods of enforcement offered by the courts next year. The Court Service is already working on proposals to improve the efficiency of the county court bailiffs.

Lord Irvine recognised that the effectiveness of the small claims procedure's offer of quick, informal, low-risk justice could be undermined as long as a significant proportion of claimants were unable to recover the monies awarded to them.

At the same time, he is proposing to increase the top limit for small claims from pounds 3,000 to pounds 5,000 in April 1999. The limit for personal injury cases would remain at a maximum of pounds 1,000.

John Baldwin, professor of judicial administration at Birmingham University's law faculty, has been researching the small claims courts for the past four years. His latest findings on the 1996 increase in the small claims top limit from pounds 1,000 to pounds 3,000 were published by the Lord Chancellor's Department on Monday.

His concern over the further increase was whether the procedure's "rough and ready" methods of justice would remain appropriate. "Once over pounds 3,000, it is more likely that people will want to be legally represented and once lawyers are involved, it all becomes much more formal and that changes the nature of the regime.

"However, it is very important that lay litigants do get competent advice about the legality of their claim or defence - it is unsatisfactory to leave them to prepare their cases and argue them in court and then expect the district judge to muddle through."

Overall, Professor Baldwin found that most litigants liked the small claims procedure, which they saw as convenient and largely lawyer-free. But that enthusiasm drained away if they could not recover their money.

He quotes the case of Ed Jones (not his real name) among many examples of plaintiffs disillusioned with the enforcement process in his book Small Claims in County Courts in England and Wales: The Bargain Basement of Civil Justice (Oxford University Press, pounds 35).

As part of that research, he followed up 94 successful plaintiffs, six months after their cases had been heard. He found that only a half received the money that was due to them, and in many cases they had to take further steps to get it. More than a third never received any payment at all.

Commercial and other types of organisation were no more successful in securing payment than were individuals. And it was not just individuals who defaulted on payments - 45 per cent of those who had not paid up were businesses.

Fewer than half of the 47 plaintiffs who had not received payments pursued the defendants through legal means. Of the others, 16 gave up and four took the law into their own hands.

Nationally, almost a million enforcement proceedings were initiated in county courts in England and Wales last year, according to the Judicial Statistics produced by the Lord Chancellor's Department.

However, one solicitor experienced in county court work said it was a standing joke that court bailiffs went to see debtors with applications to set aside the judgment stuck in their back pockets.

Professorr Baldwin said the main danger to defendants came not from court sanctions but from having a county court judgment recorded against their names on the Register of County Court Judgments, often checked by companies assessing someone's credit-worthiness.

He said the courts needed to take a more "robust" approach towards enforcement. He quoted one district judge who, when told by the defendant that he had no intention of paying the plaintiff the pounds 700 sum that the judge had just directed, said: "That's somebody else's problem, not mine."

In Northern Ireland, for example, there is an Enforcement of Judgments Office, which centralises the enforcing of orders of all the province's civil courts. At one stage in New York, a defendant's driving licence could be suspended if payment was not made within a certain period.

Consumer organisations are also pushing for an improvement in the enforcement of judgments. Eileen Brennan, a senior lawyer with the Consumers' Association, said the small-claims procedure provided a cheap, quick, informal means of redress but its effectiveness would be undermined if successful plaintiffs could not secure payment.

John Wheatley, social policy officer with the National Association of Citizens' Advice Bureaux, said: "The formal part of the procedure is daunting enough. To then be faced with indifference from the court in enforcing the judgment can be quite galling."

He said the association was cautious about the proposed increase in the top limit to pounds 5,000. It was likely to lead to more legal representation, even though there still would not be any orders for costs, which would put people representing themselves at a disadvantage.

Roger Smith of the Legal Action Group said that with some fine tuning and more training for judges, the increased top limit would probably work for consumer cases. But he had "grave questions" whether it was appropriate for housing disputes, such as landlord/tenant repair cases.

He said people chose the small claims procedure because it was an informal adjudication process. Difficulties in enforcing judgments forced people back into normal court processes.

Professor Baldwin said it would be a mistake for the Lord Chancellor to think that raising the small claims limit was a "quick fix" to improving access to justice. Consumer surveys consistently showed that only a tiny proportion of complaints ever reached the civil courts, largely due to people's natural inhibitions about going to court.

For those that did, resolving the enforcement issue was critical. "There is a danger the procedure will become an empty charade, too often producing symbolic, not substantive, justice for litigants. Worse, the civil courts will come to be seen as impotent bodies, dishing out empty threats to defendants who come to realise they are able to disregard them at will."