Small Claims, Large Disputes
Frederick Wilmot-Smith
In his Commentaries on the Laws of England, William Blackstone said that there is a right ‘of applying to the courts of justice for redress of injuries’. This is necessary to ensure that individuals’ rights do not become a ‘dead letter’. Blackstone did not say that the right carried with it an entitlement that the courts would consider the parties’ claims at a hearing: that went without saying.
On 1 June, people with claims alleged to be worth up to £10,000 were stripped of that right. Their entitlement to a public hearing depends on ‘judicial discretion’: if a judge decides the dispute is ‘suitable for determination without a hearing’, the parties won’t get one – even if they both want to be heard. The new procedure applies in six courts nationwide as part of a ‘pilot period’ that lasts until 2024.
This will affect the outcomes of cases. One study of 1.7 million social security appeals found that 48 per cent of appeals with an oral hearing were allowed; when the cases were decided on paper that number fell to 15 per cent. The impact will be especially hard on those unable to afford representation. Litigants in person are notoriously bad at handling their own cases; oral hearings can be vital in allowing a judge to clarify what is at issue.
In a recent speech on the ‘Future of Dispute Resolution’, Sir Geoffrey Vos, the senior civil judge in the country, distinguished ‘small claims’, where the parties are said to want a swift resolution ‘without caring whether the outcome is robust and dependable’, from ‘large disputes’, where ‘the parties may be prepared to invest time and money in achieving a more just and perhaps objectively correct solution.’ He cited no evidence. Together with Lord Wolfson (a former parliamentary under-secretary of state for justice, who resigned in protest at the prime minister’s attitude to the rule of law), Vos signed the document that set the pilot scheme up.
The reform assumes that a claim is less valuable because the sums in dispute are smaller. But while £10,000 may seem a small amount to some (newly qualified solicitors can earn £125,000 a year), it is life-changing for others: the standard allowance of an individual on universal credit is between £265.31 and £334.91 a month. As the US Supreme Court justice Thurgood Marshall once wrote, ‘the principles which would have governed with $10,000 at stake should also govern when thousands have become billions. That is the essence of equal justice under law.’
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"Bart! They said you was hung!"
"They was right."
Some got the joke. Some didn't, especially, I suspect, in British auditoria.