The Hearing

AuthorPatricia Pearl/Tim Parker
Pages203-234

Chapter 10

The Hearing

10.1 OVERVIEW

There is a great deal of flexibility and unpredictability in small claims hearings, but the overall objectives are clear: the judge will aim to get to the heart of the matter and reach a fair decision with the minimum fuss.

10.2 DEALING WITH CASES JUSTLY

The overriding objective is to deal with cases justly (see paragraph
5.2). CPR Part 1 is reproduced at Appendix 7

The small claims hearing will be conducted with the overriding objective in mind. The amount of money involved, the importance of the case, and the complexity of the issues will govern a proportionate approach to the case (CPR 1.1(2)).

Basics

The key elements of the small claims hearing are:

• informality
• the strict rules of evidence do not apply
• the judge will ensure the parties are on an equal footing, but …
• … prepare carefully
• video hearings are now common (see paragraph 10.21)

204 Small Claims Procedure in the County Court

As well as ensuring that the case is dealt with fairly, the judge at the hearing will ensure that the parties are on an equal footing and can give their best evidence (CPR 1.1(2)(a)), and will aim to save expense (CPR 1.1(2)(b)).

There are specific provisions in CPR PD 27A which govern the conduct of a small claims hearing. The judge will also further the overriding objective by the management of the case at the hearing, for example by:

• encouraging the parties to co-operate with each other and helping them to come to an agreement (i.e. to settle the case);

• identifying the issues at an early stage;
• deciding the order in which issues are to be resolved;
• ensuring that the hearing proceeds quickly and efficiently.

10.3 RIGHTS OF AUDIENCE (ADVOCACY)

Basics

• Qualified lawyers have full rights of representation in small claims hearings

• Parties can be represented by lay representatives at small claims hearings

• A company can be represented by any of its employees or officers

• Individuals can represent themselves alone or with the support of a McKenzie friend

A party can present their own case at a hearing, or a lawyer or lay representative may present it for them (CPR PD 27A, paragraph 3.2(1)). A qualified lawyer can conduct the case in the absence of the party, but a lay representative may only do so if the party is present.

It is sensible to decide well in advance whether you will use a lawyer at the hearing. It may take time to find someone you are happy with and who is willing to deal with the case at a realistic price.

In choosing a lawyer, you should bear in mind that in small claims, particularly if your opponent is unrepresented, the judge may use an informal procedure which a lawyer who is only used to fast or multi-track trials may find disconcerting. You should ask how many other small claims hearings they have done.

You should think about cost/benefit. The limited costs rule means you are unlikely to get back any of your lawyer’s fees even if you win. If your case is close to the £10,000 small claims limit, it could still be sensible to pay an advocate, but when the amount at stake is much smaller then it may not be. You may feel a claim is more about the principle than the money – but you should ask yourself how much you really want to spend on pursuing that principle.

10.3.1 Lawyers

In fast and multi-track cases advocacy rights can only be exercised by those professionally qualified and permitted to do so. Such advocates have studied law and procedure for some years, and are regulated by their professional bodies. See the definitions in the Glossary at the front of the book of ‘Barrister’, ‘Legal executive’, ‘Advocate’ and ‘Solicitor’.

The judge will not prevent one party from using a professional advocate if the other is acting in person. Everyone is entitled to be represented by counsel or solicitors of their choice. CPR 1.1, which includes the provision that the parties should be on an equal footing, is not interpreted to reduce or remove that right. If, during the hearing, a lawyer or the judge uses a specialised legal term which you do not understand, you should ask the judge to explain it to you.

10.3.2 Lay representatives

A lay representative presents the case to the court as an advocate. This is different from the role of the so-called ‘McKenzie friend’, who assists the litigant in person in court but leaves them to speak to the judge directly (see paragraph 10.12).

A lay representative may give litigants more confidence to pursue or defend their cases in court. They do not need to be particularly skilled, and standards of competence vary. Anyone can be a lay representative. You should choose carefully. Does the person understand the details of your case? Can they explain it clearly? Are they good with paperwork? Sympathy with your predicament and a confident manner are all very well, but an ability to look at the case objectively and see the weaknesses as well as the strengths is even better.

A lay representative may not exercise any right of audience where the party does not attend the hearing unless the court gives permission (CPR PD 27A, paragraph 3.2(2)).

Although a lay representative can speak in court, this right does not extend to conducting the litigation generally; the claim, the defence and all correspondence

206 Small Claims Procedure in the County Court

with the court must be signed by the litigant personally. The right of audience of a lay representative does not extend to any steps after judgment or to any appeal (CPR PD 27A, paragraph 3.2(2)).

10.3.3 Companies

A company can be represented in court by any of its officers or employees (CPR PD 27A, paragraph 3.2(4)). Because of this, judges will not necessarily accept that they should adjourn a hearing because one particular employee is unavailable: if they alone can present the case, you should explain why that is.

10.4 HEARINGS ARE IN PUBLIC

Basics

• Small claims hearings are normally open to the public
• In limited circumstances the court must direct a private hearing

The general rule for all civil cases is that hearings are to be in public, and there is no exception for small claims cases (CPR 39.2). This is consistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6.1

It is very rare for outside observers to turn up at small claims hearings, which almost always involve no more than the parties, the judge and perhaps one or two people invited by the parties themselves. Journalists rarely attend small claims cases unless they involve celebrities or other public figures.

CPR 39.2(3) sets out the very limited circumstances in which a hearing must be held in private. Most of these are unlikely to apply to any small claim, but it may sometimes be arguable that a case falls within the exception at CPR 39.2(3)(c) as ‘it involves confidential information (including information relating to personal

1 ‘Article 6. Right to a fair trial: 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’

financial matters) and publicity would damage that confidentiality’. If the court is satisfied of that, it must also be persuaded that ‘it is necessary to sit in private to secure the proper administration of justice’. This wording was added to the CPR in April 2019, and at the time of writing there are no reported cases that shed much light on how the courts will apply it in the types of case seen in the small claims track.

Although spectators are rare, the court must take reasonable steps to ensure that all hearings (unless conducted in private) are of an open and public nature (CPR 39.2(2A)). If the public turn up in numbers, and the hearing is listed to take place in a small room (as sometimes happens), the judge will have to consider that rule. If a larger room is available, the judge will move to it. If nothing larger can be found on the day, the judge will consider whether to adjourn until a larger room is available, or whether the need to deal with cases expeditiously and without disproportionate use of the court’s resources (CPR 1.1(2)(d) and (e)) means that the hearing should carry on. If a party realises in advance that the hearing is likely to be well attended, they should warn the court.

The judge may occasionally decide that some or all of a hearing should take place outside a courtroom: for example, because the judge needs to make a site inspection to understand the dispute, or because one party is medically unable to come to court. Until July 2019, it was specifically provided in CPR PD 27 that such hearings were not public hearings: they are now in general to be regarded as taking place in public.

While the Coronavirus Act 2020 is in force, CPR PD 51Y allows the court to direct that a hearing should be by video or audio, and to direct that it should proceed in private if it is not practicable for the hearing to be broadcast in a court building: if so, anyone may (with the court’s permission) subsequently listen to a recording of the hearing. A hearing will be regarded as public if a media representative is able to access the proceedings while they are taking place.

For more about video hearings, see paragraph 10.21.

Those concerned with privacy should consider mediation; the Small Claims Mediation Service offered by the court is private (see Chapter 7)

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