Preliminary Topics
| Author | Patricia Pearl/Tim Parker |
| Pages | 1-19 |
Part 1 Claims
Chapter 1
Preliminary Topics
1.1 HOW TO USE THIS BOOK
It is natural to skip chapters in a reference book and to seek out the parts that are needed. Even so, it is highly recommended that this chapter and in particular paragraph 1.3 ‘Evaluating the case and avoiding court proceedings if possible’ are read in full before advancing to other sections. The book contains numerous cross references, and for those in a rush the boxes in the text contain basic information about the detail which follows.
Courts have their own vocabulary and readers confronted with a new word or term should consult the Glossary at the front of the book.
References to ‘rules’ in this book are to the Civil Procedure Rules 1998,
This book has five parts:
• Part 1 (Chapters 1 to 6) is relevant to all claims and includes guidance on how to start the claim, preparing the case and any defence. There is a procedural table and drafting precedents which are useful for small claims. This part is a ‘must read’ for anyone new to small claims cases or court procedure in general.
4 Small Claims Procedure in the County Court
• Part 2 (Chapter 7) deals with mediation and settlement. The court will encourage the parties to seek a settlement without a court hearing and where cases are allocated to the small claims track a mediation service is provided at no additional charge. The service is confidential and effective. This chapter contains a procedural table and guidance on how to get the most out of mediation.
• Part 3 (Chapters 8 to 11) deals with hearings, including appeals.
• Part 4 (Chapter 12) deals with enforcement of judgments. You should read this before you begin a court case!
• Part 5 (Chapter 13) deals with small claims for personal injuries.
In addition, the book contains appendices setting out court fees and extracts from the rules, practice directions and Pre-Action Protocols. Navigation through the chapters is designed to be as easy as possible with numerous separate sections with descriptive headings.
1.2 PRELIMINARY TOPICS
1.2.1 The overriding objective
This book is about the procedural rules which apply to running a small claims case in the County Court and the practical and effective ways in which these rules are applied to cases of limited financial value.
The CPR govern the procedure applicable to small claims. The overriding objective of the rules is to enable the court to deal with cases justly and at proportionate cost. CPR 1 describes the way in which the court seeks to achieve this objective, for example by active case management and encouraging the parties to settle. Throughout this book, references are made to the case management powers which enable judges to control the preparation of the case for the final hearing. Poorly prepared or hopeless cases may not reach a final hearing; they are likely to be identified by the judge at an early stage, and struck out or at least subjected to rigorous case management. The court will also scrutinise steps taken before the commencement of court action, including letters before action and compliance with the practice direction relating to ‘pre-action conduct’ (see paragraph 1.4).
The overriding objective is discussed in detail at paragraph 5.2
CPR 1 is set out at Appendix 7
1.2.2 Speedy – effective – proportionate
The overall procedure for dealing with small claims cases is set out in CPR Part 27. It aims to provide a speedy,
The procedure is intended to be usable by litigants in person. The efficiency of the small claims procedure depends on court users understanding the rules and applying them in a practical way.
1.2.3 The small claims track – history and overview
The procedure has evolved over the years. Initially limited to claims involving sums in dispute of not more than £100, the current small claims financial limit is £10,000 in most cases. That is not a ‘small’ sum for most people; neither are small claims insignificant in any way for the court. Going by the sheer number of hearings, most disputes that are decided by civil judges in England and Wales are small claims.
When the current rules (CPR) were introduced in 1999, the small claims procedure was clearly inspired by the previous ‘arbitration’ hearings conducted by a district judge in private. The route to a hearing was straightforward. There was no appeal. Since then the rules have experienced constant changes, and the authors of this handbook have bemoaned the increased complexity of the small claims procedures. In this edition we deal with the increase in the small claims limit for personal injury claims arising from road traffic accidents (now £5,000) and the ground breaking ‘Portal’ system for such claims – explained in Chapter 13. As a result of the pandemic, many hearings have moved away from court buildings to video hearings, and it is possible that this may be a permanent change in some situations.
HM Courts & Tribunals Service (HMCTS or ‘the Courts Service’) offers a mediation scheme for cases allocated to the small claims track. This has been running since 2008. Chapter 7 discusses the scheme in detail and offers practical advice on how to make the most of it. There is no equivalent court-run scheme for cases allocated to other tracks.
1.2.4 Dealing with the court system
The civil court system has been subjected to substantial funding cuts over the last decade. There are now fewer hearing centres, and fewer staff. Public counter
6 Small Claims Procedure in the County Court
service has almost disappeared. Telephone calls are not always answered promptly. Communications are sometimes filed unread, or mislaid. Delays at all stages of administration are a distinct possibility. The Justice Committee of the House of Commons reported in October 2019 that it had ‘received powerful evidence of a court system in administrative chaos’ and that ‘staff shortages in many courts are so serious that they may undermine access to justice and threaten to compromise the fairness of proceedings’.
Contacting the court with a query can be difficult:
• In order to speak face to face with a member of staff it is generally necessary to make an appointment.
• If you ring up the court, you may have to hold, or dial in repeatedly.
• Email is usually your best chance of getting a prompt response. If you are writing about a time-critical matter (such as an impending hearing), you should mention the relevant date prominently and mark it URGENT.
• If you encounter serious problems, you should make a formal complaint. This should go to HMCTS.
• It is not unusual to find that although documents have been correctly delivered before the required date, they are not on the court file in time for the hearing. Many legal representatives aim to deliver papers to the court earlier than the specified filing date, and bring an extra set to court.
Any communication you send to the court must be disclosed to and, if in writing, copied to, the other party unless it is purely routine, uncontentious and administrative (CPR 39.8). Written communications should contain a statement that they have been so copied: if they do not, the court staff may return them without dealing with them or referring them to a judge (CPR 39.8(5)).
1.2.5 Electing to use the small claims track
Parties may consent to a claim being allocated to the small claims track where the financial value of the claim exceeds the usual qualifying amount. They then have the benefit of the simplified procedures of the small claims track, an informal hearing, and the protection of the limited costs rule.
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