small claims rules

Sorry Mr Litigant in Person but rules are rules.

Small claims rules are very important to follow. The difficulty for people going to court, is that the rules can be overwhelming and it is difficult for those unfamiliar to know where to start. The main problem is that the rules for high value claims, also apply to small claims, with some modification as set out in part 27 of the rules. The civil procedure rules are vast and can be overwhelming for people thinking of going to court.

This week the Supreme Court made a very important judgement in relation to the treatment of individuals without legal representation in civil claims.

The case involved a litigant in person (someone acting without legal representation) which the vast majority of people in small claims will be. The person made a procedural error in relation to service of the claim form. The claimant tried to effect service of the claim form by email without agreement by the Defendant that service by email was acceptable. Under the court rules, that was not good service and therefore the claim had not been served in time.

The issue before the courts was effectively whether the individual acting without the benefit of legal representation ought to be given special treatment and leniency.

This is an issue that made its way all the way to the Supreme Court, which is the most senior court in England and Wales, and has the most senior Judges. Crucially, the Judges decided by a majority of 3-2, that he should not be given any form of dispensation and that the consequences of failing to comply with the court rules would have effect. As such, service of the claim form was not properly effected and his claim was invalid.

Whilst it may have been the case that the claim form was indeed received and brought to the attention of the Defendant, the method of service was non-compliant with the court rules.

In short, the rules are the rules.


Small claims rules and compliance with the CPR generally

The judges indicated that sometimes a litigant in person with a lack of representation could justify making allowances in case management decisions and in conducting hearings but it will not justify applying a lower standard or allowing individuals to avoid complying with rules contained in the civil procedure rules or orders of the court.

This is an important judgement for anyone looking to bring a claim in the civil courts, whether a small claim or a higher value claim such as in the fast track or even multi track (where parties are at risk for costs close bracket).


Future developments with small claims rules

In all likelihood, with the likely increase in the number of litigants dealing with small claims litigation themselves due to the forthcoming changes in the personal injury limit, we anticipate a revision to the court rules. As a reminder, it is proposed that the small claims limited for personal injury claims will increase from £1,000 to £5,000, so will cover a great more of standard whiplash and tripping claims.

We hope that there will be a simplification of the small claims rules for the good of those trying to use the system. It will also help the courts get through the increased volume of personal injury claims the courts are going to have to deal with brought by unrepresented parties. Otherwise, Judges are going to have a lot of messy claims to unravel and procedural arguments to decide.

With specific reference to personal injury claims, it cannot be fair that insurers acting for defendants who have vastly experienced employees and solicitors extremely familiar with the court rules, are up against people who are going to court for the first time. That is a huge imbalance and contrary to the overriding objective of the civil procedure rules, which includes the need to ensure “that the parties are on an equal footing”.

The civil procedure rules are often referred to by solicitors and barristers in court by reference to what is known as the White Book. This is two volumes of a comprehensive account of the civil procedure rules along with the relevant legislation and court and cases to refer to in front of Judges. There are two volumes and each is around 3 inches thick. It cannot be right that individuals struggling on to bring litigation without representation are expected to be able to respond to unfamiliar procedural points put forward by Barristers and Judges.

Whilst there is a provision in the civil procedure rules (CPR 27) indicating some special rules for the conduct of small claims, in our view there should be a simplified code entirely separate from the main rules.

The case referred to in this article is Barton v Wright Hassall.