SMALL CLAIMS*
| Author | Terence G. Ison |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01316.x |
| Date | 01 January 1972 |
| Published date | 01 January 1972 |
SMALL
CLAIMS
*
1.
THE
PRESENT
SYSTEM
THE
handling of small claims
is
probably the most deplorable
feature
of
the administration
of
civil justice. As an extreme
example, the Court of Appeals
of
the State of New York has pro-
duced some of the finest jurisprudence
in
the common law world;
and yet when the lower courts of that same State are dealing with
the inhabitants
of
Manhattan, a large proportion of actions (possibly
a majority) end with a default judgment based
on
a
perjured
affidavit of service, the summons never having
been
served at al1.I
Moreover the practice has been widely known and has enjoyed
official tolerance for several years.
To
assume that things are better in Britain would be tempting.
But
it
would require limiting one’s vision
to
the observance of
formal requirements.
For
service of the summons
is
a hollow
formality unless the opportunity
to
defend
a
claim
is
pracltical and
realistic
.
England has
no
special procedure for small claims. Some types
of cases which are handled by small claims courts in other juris-
diction:~ are dealt with in England in ways which obviate the
necessity for
a
claim. Perhaps the most significant example is
knock-for-knock agreements among motor-vehicle insurers. Bulk
for the remaining
cases
that are not settled,
a
claim must either be
brought in the county court
or
abandoned.
Of claims brought in the county courts, the largest category is
debt claims arising out of retail transactions.
It
may be well
to
discuss these
at
some length, both because of their numerical signi-
ficance and because the handling of these claims illustrates the bias
and inadequacy of the system.
A
common misconception about courts is that they are engaged
primarily in the
task
of adjudication.
So
far
as consumer trans-
actions are concerned,
it
is nearer the truth
to
describe the county
courts
as
being like collection agencies, enforcing the claims
of
sellers ernd finance companies regardless of their legitimacy. Only
occasionally and by way of exception is there an inquiry into the
merits of the case. Moreover there
is
an almost
total
absence of
claims hy buyers.
Unfortunately, civil judicial statistics are not broken down
into very meaningful categories, but
a
rough impression can be
gained by systematic inquiry among county court registrars and
A
draft
of
this article
was
presented for discussion at
a
colloquium
on
Civil
Procedure held #at Oxfard in Septeanber
1970
under the auspices
of
the United
Kingdom National Committee
of
Comparative
Law.
1
See
e.g.
the transcript
of
a public hearing
on
“
Abuses in Service
of
Process
”
before the Attorney-General
of
the State
d
New York, January
13, 1966.
18
JAN.
1972
SMALL CLAIMS
19
counter clerks.2 While deht claims by credit grantors can be
counted in hundreds
or
thousands a year, claims by buyers in the
same courts can be counted in ones
or
twos. The contrast is even
more striking when
it
is remembered that claims by sellers are
generally limited to credit transactions, whereas theoretically
claims by buyers are not.
If
an
adjudicartion comes about
at
all,
it
is more likely to
result from a defence filed to a claim initiated by
a
seller. Defences
to claims by sellers are much more common ,than claims initiated
by buyers, but even here there is cause for
concan
and reason to
suspect that defences are only filed in a small proportion of the
cases in which a defence would be available.
The
reasons why buyers do not usually defend and rarely ever
sue are not hard
to
find.
(1)
For
a
seller
or
finance company, a dispute with
a
customer
can be handled as a normal business routine, but for the customer
is more likely
to
be a disturbing experience. This is aggravated
by the psychological impediments of the legal system. The court
building. itself is often austere and formidable, and few look as
if
they are there to serve the ordinary man. Even in the new court
houses, the architectural tone is often one of austere grandeur
rather than a design for a functional and attractive service industry.
(2)
Court forms, often including legal jargon in the terminology,
are likely
to
seem strange and awesome
to
a buyer, but normal
routine
to
a seller. Moreover the socio-economic milieu of the
judge is closer to that of the businessman than
it
is
tu
that of the low-
income consumer. Thus w,hile
a
seller may feel at ease in the
prospect of talking
to
the judge,
a
working-class buyer fmeels that
he has
to
communicate with one of
cc
them
”
not one of
‘‘
us.”
If
the buyer is inarticulate
in
expressing himself,
this
-too-
can add
to his anxiety.
It
may well be true that
if
he ever reached the
courtroom, the judge would be patient and sympathetic in listening
to him. But this
is
irrelevant for someone who is never going to get
that far.
(8)
The use of forms by a seller
(e.g.
invoices and bills) gives
him another psychological advantage. By having
a
figure in his
books and showing that figure
in
the documents Ithat he sends, his
claim
is
given an aura of righteousness.
A
buyer has
no
such formal
trappings in which he can dress
a.
claim against a seller.
(4)
Most claims by sellers are for debt. Hence
if
no
defence is
filed
a
default judgment can be obtained with
a
minimum of
trouble. But a claim by
a
buyer, even
if
there is
no
defence, will
usually involve proof of the damages.
2
This
article is a by-product
of
a resmroh project that included
inquiries
among
county court registrans, court officials, solicitore, judges, Citizens’ Advice
Bureaux, trade associations, government departments and othera. Some inci-
dental
information was also obtained from interviews with
a
pre-seleoted random
Nample
of
1,500
households
in
England end
Wales,
but
this survey was
primarily concerned with data relating
to
other
issues.
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