Tony N. Guise

#GuiseOnJustice – So you have a Small Claim? How much time have you got to spend on that? by Tony Guise | January 2022

January 2022

In England and Wales the Small Claims Track (“Track” simply means a set of procedures appropriate for lower value claims) is intended for disputes with a financial value of up to £10,000 that does not involve a personal injury caused: by a road traffic accident, in the workplace or by a public authority.  Typical claims handled by the Small Claims Track are unpaid invoices or arguments about building work carried out on residential properties.

Since 2018 many of these claims have been started in a Cloud-based portal called Online Civil Money Claims (OCMC) with over 200,000 claims commenced using that platform.  It is an intuitive process meaning that to commence a claim the case is “built” by users answering questions about their case and uploading images and documents that support their case.  This usually takes 30 minutes or less.

The issue affecting OCMC is that the digital process comes to an end if a Defence is filed, although a case timetable (called Directions) can be set now using online tools. Once that stage is over the case is transferred to the paper based County Court system meaning that a hearing can take a long time to reach a final hearing.  Whilst the Court has a target of 30 weeks to reach a hearing (just over six months) in fact the latest Court statistics show hearings are not happening for 52 weeks, a full year.

When the final hearing does arrive it may be a wise investment to instruct specialist qualified legal support using a representative from Small Claims Portal’s qualified legal team paid by a fixed fee.  Such support from an expert in advocacy and the law can help to maximise your chances of winning on the day.

There are alternatives to the long wait.

One of those alternatives is a new system to enable offers to settle to be made and agreed online.  Typically such deals provide for a lump sum to be paid either within a period of time or by instalments.

Another alternative is to mediate the claim to achieve a quicker result.  Mediation is a process of dispute resolution in which a neutral third party helps the parties to identify the real issues in dispute and achieve a compromise with which each party can live so that everyone can move on.

This alternative is delivered using the Courts’ Small Claims Mediation Service (SCMS).  SCMS is a free to use service in which specially trained Court staff act as mediators using the telephone to discuss the key issues with all sides and seek to arrive at a settlement agreement.  The Courts report that by using OCMC cases can be settled within 5 weeks.  Although the paper systems remain in place for those unwilling or unable to use the digital service.  In the paper system cases are said to settle in just under 14 weeks which is still better than 52 weeks!

In mediation other outcomes can also be achieved such as apologies, agreements to put defective work right as well as the payment of money.  In contrast to mediation the Small Claims Track can only deliver a binary win/lose outcome.

During the mediation process it is possible to have someone with you to help whether a friend or using one of the qualified lawyers from the Small Claims Portal’s team working for a pre-agreed fixed fee.

The mediation service is what is known as “opt-out” for all claims up to £10,000 and both sides must agree to mediate.  The data shows that most cases are opting-out at present.

During 2022 it is expected that the Courts will require all cases in Small Claims Track to undergo mediation before a case can be issued in the Court.

This system is likely to be delivered via another portal specifically designed for the pre-action stage of your claim.  It will result in a significant increase in the number of mediations taking place which may severely test the resources available to the Small Claims Mediation Service.  We anticipate the private sector will be asked to step in to provide mediators paid for by the Courts and we expect the Small Claims Portal will be able to support an expanded Small Claims Mediation Service by using members from its panel of mediators.

Tony N. Guise
Tony N. Guise | Director Limited

Tony Guise is the Director of the specialist provider of ADR management platforms.  He is a Past President of the London Solicitors Litigation Association and former member of the Civil Justice Committee of the Law Society of England and Wales.

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