The Court of Appea

Various things may happen even before formal proceedings commence. On the claimant's application, for example, the court may order the photographing, sampling, preservation or safe custody of any property likely to become the subject of litigation. (In Ash v Buxted Poultry (1989) Times 29/11/89 a court order was made for the videotaping of the industrial process in the course of which the claimant had allegedly been injured.) Where the anticipated claim is based on death or personal injury, the claimant may obtain an order for the disclosure and inspection of documents thought to be relevant. Disclosure is considered more fully below, but an early opportunity of inspecting the documents often enables the claimant to judge whether he really has a case at all. For example, an injured workman may need to see the maintenance log of the machine which caused his injury to realise that there are good grounds for alleging negligence.

By a search order (whose use in this form was approved by the Court of Appeal in Anton Piller v Manufacturing Processes [1976] 1 All ER 779) the judge can order the defendant to allow the claimant's representatives to enter his premises (under the supervision of an independent solicitor) to inspect, copy and/or remove documents and other materials. the claimant cannot use force to back up such an order, but the defendant (who is allowed to contact his own solicitor) will be in contempt of court if he refuses. Such an order is rare, but may for example be made in a breach of copyright case where there is a serious risk that the defendant will destroy the incriminating evidence if given advance warning.

A freezing order (approved by the Court of Appeal in Mareva v International Bulkcarriers [1980] 1 All ER 213) may also be issued, and restrains the defendant from destroying assets or removing them from the jurisdiction: a copy is often served on the defendant's bank, who are equally bound. (Equitable remedies act in personam and bind anyone knowing of them.) Such an injunction prevents the defendant from sending all his assets abroad to avoid their seizure in satisfaction of damages. Neither a search order nor a freezing order is granted unless the claimant can show good cause, and the claimant must normally give an undertaking to compensate the defendant for the inconvenience should his action be unsuccessful.

Courts and tracks Civil proceedings are brought either in the appropriate Division of the High Court or in the County Court, and following the introduction of the Civil Procedure Rules 1999 the differences in jurisdiction and procedure are minimal. The claimant may begin almost any civil action (except defamation, which is expressly excluded by s.15(2) of the County Courts Act 1984) in the County Court, and must use the County Court for any claim worth under 15 000 and for any personal injuries or contract claim under 50 000. The first formal stage is normally the issue and service of a claim form (formerly called a writ or summons); this is a formal document issued by the court and delivered to the defendant. It identifies the parties and states the nature of the claim and the cause of action; further details can be included or may follow within fourteen days.

If the defendant admits the entire claim, or does not reply within fourteen days of receiving it, formal judgement is entered for the claimant and all that remains is for the defendant to pay up. If the defendant denies some or all of the claimant's claims of fact, raises a special defence such as volenti (voluntary acceptance of the risk), admits the facts but denies legal liability on a point of law, or admits liability but disputes the amount of damages, the case is allocated (by the court) to one of three tracks.

The small claims track is for cases worth under 5000, which are not expected to raise any difficult questions of law – this covers nearly 90 per cent of all civil claims not immediately admitted or settled. Personal injuries claims under 1000 are included, even though this may leave the victim to argue medical points against an insurance company's lawyer. Afzal v Ford Motor Co [1994] 4 All ER 720, CA A man sued his employers for a minor injury suffered at work, and his claim was referred (without his consent) to Small Claims Arbitration. The Court of Appeal upheld this decision: there is no reason in principle why low-value personal injury claims brought by an employee against his employer should not be dealt with in this way; the absence of legal aid was no reason for transferring such cases to the court proper.

The fast track is for cases worth between 15000, which are not expected to need a trial lasting more than one day. This is a new procedure since April 1999, and is designed to produce affordable justice in the majority of cases outside small claims. The multi-track is for cases involving large sums of money or raising difficult points of law. Small claims track If the case is a simple one and both parties agree, the District Judge may make a decision on the documents alone, without an oral hearing. Otherwise, the District Judg e gives directions (for example, about producing certain documents in advance, and about the number of witnesses allowed) and sets a date for a hearing.

Under the old Small Claims Arbitration process the hearing normally took place in private in front of the District Judge, but in Scarth v UK (1998) 26 EHRR CD154 the European Commission of Human Rights said this might violate a person's right to a public trial, and the government did not contest this ruling. Hearings on the small claims track therefore take place in public unless there are good reasons to make an exception, but proceedings are fairly informal. Wigs and gowns are not worn, the strict rules of evidence do not apply, and evidence need not be taken on oath, but cross-examination must still be allowed if a party so wishes.

Chilton v Saga Holidays [1986] 1 All ER 841, CA A couple PP claimed compensation for a disappointing holiday, and represented themselves in Small Claims arbitration. After PP had told their story, the Registrar said DD's solicitor (representing DD at the hearing) might put questions to them through him, but refused to allow him to cross-examine PP directly. Allowing DD's appeal from the Registrar's subsequent finding in PP's favour, the Court of Appeal said the right to confront the witnesses against you was fundamental to the adversarial system of justice, and could not be denied even in the interests of supposed fairness.

Legal representation is not prohibited, but is discouraged, and the winner will not be awarded any costs in respect of such representation. A party is allowed the assistance of a "McKenzie friend" to take notes and offer advice, and may be represented by a non-lawyer whose fee (if any) may be recoverable. Where one party (or both) is unrepresented, the District Judge may ask questions to ensure that the party's case is properly put and all relevant facts presented. In fact very few parties have lay representation, and 85 per cent of individuals represent themselves, though businesses are legally represented about half the time. But a survey by the National Audit Office in 1996 suggests that an unrepresented party is still at a disadvantage where the other party is represented. In 17 cases examined where P was represented and D was not, P won in all 17; in 13 cases where D was represented but P was not, P won in only 8. The total numbers are small, and we do not know whether there are extraneous factors confusing the issue, but there may be grounds for some concern here.

At the end of the hearing, the District Judge gives his decision, which has all the force of a court judgement and is enforceable by the same procedures. The judge has essentially the same powers at his disposal as any other judge: he can award damages, for example, or grant an injunction or an order for specific performance. The judge's decision is normally final, but there is a right of appeal to the Circuit Judge in the County Court where the decision contains a visible error of law.

The small claims process (now replaced by the small claims track) has been available in the County Court for over 25 years, and is intended to produce affordable justice at a cost proportionate to the sums involved. The process has yielded a high level of satisfaction among litigants, and research has shown that even the losers generally accepted its fairness. There is no reason to expect any change in satisfaction levels under the new civil procedure rules even though the cash limit has been raised.

According to a report by the National Audit Office in March 1996, over 90 per cent of small claims are uncontested and the defendant admits liability; the claimant therefore wins in about 94 per cent of cases overall. About 75 per cent of claimants (and about 40 per cent of defendants) are businesses or public authorities. About 75 per cent of claims are for unpaid bills, 11 per cent are claims for damage or minor injury resulting from a road traffic accident, and 6 per cent are consumer claims.

The court fee (covering the issue of the claim form and the hearing if one is needed) is between 80 depending on the value of the claim. If enforcement proceedings are needed after judgement, there is an additional fee of about �40. These fees are payable by the claimant in the first instance; they are added to the judgement and can be recovered (in theory) from the defendant. Court fees can be waived for those on income support or in other severe financial hardship, but this is not widely known.

43 per cent of claimants actually recovered all the money due to them and 15 per cent recovered some of it; more than half of these were paid without needing to take any enforcement proceedings. But 36 per cent of claimants, having won their case, recovered nothing. Even where the claimant took enforcement proceedings, these often failed because the defendant could not be found or had no property on which execution could be levied. Over 80 per cent of claimants found the small claims process easy to use, and two-thirds sought no advice except from family and friends. (The Court service provides leaflets to help both claimants and defendants through the small claims process.) About 70 per cent thought it was cheap. Overall, two-thirds of claimants were satisfied with the way their claim had been handled.