This essay will critically evaluate the development of English law relating to the ability of people to make small claims in the County Court; the theoretical purpose and ability of the Court, the financial possibility, the relevance, and new and ongoing developments. The County Court was created in 1846 by the County Courts Act (Archer, 1956); and so is a court created by statute, putting it in contrast to some other English courts which developed through the common law.
The purpose of the county court was to deal with small claims, and to be affordable for the poor, so that justice might be available to all. The name is perhaps misleading, as County Courts are not divided by counting, but into 216 "circuits". The County Court hears cases involving personal injury, negligence, money claims, etc, all of which are up to claims worth i?? 50,0001. They operate in tracks, established by the Civil Procedure Rules 1998; the Small Claims Track, The Fast Track, and the Multi Track which deal with claims worth i??
1-i?? 5000, i?? 5001-i?? 15,000 and i?? 15,001-i?? 50,000 respectively (Malleson, 2007). The number of courts, the size of the claims, and the sorts of claims the courts handle are a testament to their design; created so that the ordinary man might have access to a system of civil justice. This was the purpose legislators had in mind when creating the County Court and developments thus far have been intended to make the process of ordinary people making small claims in the court easier.
When beginning litigation, according to the County Courts Act 1984, the present relevant authority on County Courts (although some parts have been amended or repealed by innumerable statutory instruments) Part III Section 66, and with certain exemptions, a Jury may be impaneled2. Part I, Section 15 of the Act, states that the jurisdiction of the County Court is to hear and determine any action founded on contract or tort, within the exception of the libel of slander, and some titles3.
Thus, almost all civil claims must go through the County Court, although appeals can be made to the Court of Appeal, according to the rules laid down in the Civil Procedure Rules, as stated in Section 77. 4 Interestingly, Section 69 allows the Court to award interest on damages or debt, subject to certain conditions5, at a rate of 8%. 6 However, it is not quite so simple as that.
According to Adrian Zuckerman ('Costs Capping Orders – the Failure of the Third Measure for Controlling Litigation Costs', p271), "the one aspect of civil justice that continually occupies courts, practictioners, and members of the public is the high and unpredicable cost of litigation. " Zuckerman also claims the Civil Procedure Rules (CPR) 1998 have "done nothing to improve the situation. " (ibid) With Legal Aid being established in 1949 by the Legal Aid and Advice Act, it is now 51 years since England has begun tackling the problems of costs in litigation.
Given that the County Court was established over a century prior, with the intent purpose of opening up the justice system, it seems that problems systemic to civil procedure in litigation are still extant. We will be justified in taking some time to discuss and evaluate the issues of finance in regards to claims in the County Court. This is because England does not have a "nationalised" system of providing advocacy in civil matters, unlike in the criminal courts where a defence and a prosecution are guaranteed by the Criminal Defence Service and the Crown Prosecution Service respectively.
Costs are ultimately born by litigators one way or another and although legal aid exists (and will be examined), without the ability to pay, civil justice is out of reach. "Civil litigation in England and Wales is notoriously expensive," says Mildred (2009). With this in mind, we must certainly recognise that if potential litigators cannot even afford advocacy, the ability to bring small claims to the court by a great many people would be essentially nonexistent.
For the purposes of this essay, the study of how litigation may be paid for is intrinsically linked to the evaluation of hand. In the context of the development of English law relating to the ability of people to make small claims in the County Courts it is entirely appropriate to speak of whether litigants can actually afford to make a claim in the County Courts. English law incorporates many aspects; not just the makeup and purpose of the Courts, but also the procedure by which they operate.
To ignore it would be to miss the point of the ability to make claims in the Civil Courts in the first place. Lord Woolf's report in 1996 that led to the CPR stated that "there is no alternative to a fundamental shift in the responsibility for the management of civil litigation in this country from litigants and their legal advisors to the courts. "(Zuckerman, 'Civil Litigation: a Public Service for the Enforcement of Civil Rights', p2) The main thrust, then, of the CPR was to transfer control of the process of litigation from the involved parties to the court.
So why is legal aid, civil procedure, and funding of litigation important to people's ability to raise claims in the County Court? Zuckerman (ibid)notes that civil law enforcement is just as important as criminal law enforcement if we are to live in a lawful society. The criminal law is funded entirely by the taxpayer but in the civil law the same can not be said. This is a blocking point for the ability of people to make claims as advocacy is not cheap.
It is true that all these issues with legal aid also apply to the other civil courts and in part to the criminal courts in regards to private prosecutions. But with the County Court they are especially important, because of the County Court's intended purpose; to provide civil justice for those who might otherwise not be able to afford it. No doubt if every potential case was paid for by the taxpayer, the ability of people to make small claims in the county court would be greatly increased.
Yet costs would skyrocket, and it might open, as judges often say; "the floodgates of litigation. " One method of controlling the costs of claims are the protective costs orders (PCO), recognised formally after the Beddoe jurisdiction in Beddoe, Re. Originally this "enabled trustees who brought proceeding on behalf of the trust to seek an order that their costs shall be paid out of the trust fund. " Later on, though, PCO's began to develop as a way for a litigant to avoid paying the other side's costs if unsuccessful.
At first, these were public organisations and charities who could not spare the resources; hardly the demographic held in mind in regards to the County Court. (Zuckerman, 'Protective Costs Orders – A Growing Costs-Litigation Industry', p161. ) Yet it is important that public associations ought to be able to use the claims systems; for instances, a pressure group accused of libel may insist that the case would be an issue of free speech. England's system of precedent makes it important for voluntary organisations in an open society to be able to defend themselves in court.
In some instances, then, the ability to make small claims in a County Court is not simply an issue of public access to justice. It becomes a democratic necessity. In R v Lord Chancellor Ex p. Child Poverty Action Group , it was held that voluntary organisations may apply in advance of proceedings for a PCO. (Ibid, 161-162). Cost capping is also one method of controlling the costs of litigation. CPR Part 26 requires both parties to provide estimates of costs. The assumption would be that these costs, taken before the trial, would be capped at the estimation.
The Court of Appeal in Leigh v Michelin Tyre Plc, however, held that "the mere fact that a litigant supplied a low costs estimate should not prevent the litigant from claiming much higher costs. " (Zuckerman, ibid, p273). There seems to be little future in cost capping and at any rate, in practical terms, if it was taken seriously, solicitors might simply give high or exaggerated cost estimates in any case. Cost capping seems an ineffective way of ensuring that everyone has access to the civil courts.