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Small Claims Paper Determination Pilot – Balancing Rights and Efficiency

The Small Claims Paper Determination Pilot is an initiative introduced by Practice Direction 51ZC of the Civil Procedure Rules. The scheme will allow certain small claims cases to be resolved on paper without a formal hearing before a judge. This scheme is designed to assist in managing delays throughout the legal system, which have only become progressively more severe with the Covid-19 pandemic. The pilot will run from 1st June 2022 until the 1st June 2024 and will be applied to small claims procedures in the courts of Bedford, Luton, Guildford, Staines, Cardiff and Manchester. Much criticism has been directed towards this pilot scheme, with some suggesting it actively threatens access to a fair trial in an already inaccessible system for a significant proportion of the population.

The scheme has been designed as an alternative to small claims cases having a formal hearing. Instead of the parties litigating in person, they will state their case to the judge through written submissions and physical evidence rather than oral evidence, and the judge will assess and decide the case on paper at a designated determination date. The intention is for relatively factually and legally uncomplicated claims requiring no oral evidence or oral advocacy to be decided justly and quickly through a paper determination. Practice Direction 51ZC provides examples of suitable cases such as a claim for compensation for flight delay or denial of boarding pursuant to EU Regulation 261/2004 and/or The Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019; a claim arising out of the issuance of a parking ticket on private land; and any other claim of £1000 or less by value where there is no significant factual dispute which requires oral evidence, and the issues are not of such complexity as to require oral advocacy.

The pilot scheme is being applied to most small claims cases issued after 1 June 2022, with exceptions of claims following the Pre-Action Protocol for Personal Injury Claims below the small claims limit in road traffic accidents, and housing disrepair claims. The pilot scheme will continue to apply to all claims issued before 1 June 2024, even if the claim continues beyond this date. It will not apply to existing proceedings, only those issued during the pilot period. If a small claim listed for determination without hearing is allocated to another track, the pilot will no longer apply. If a claim allocated to another track is transferred to the small claims track, the pilot may be applied. The parties will be notified at least 21 days before the determination is to take place that their case will be determined without a hearing. Parties may object to this decision with a written submission at least 7 days before the date of determination. These objections will come before the judge at the time listed for determination and it will fall to the judge to consider the written objections and reconsider the suitability of the case for determination without a hearing. Where a party is unhappy with a decision taken as part of a paper determination without a hearing, they will be required to follow the appeals procedure listed in Practice Direction 52.3. While this pilot scheme has been introduced in order to assist with reducing the volume of cases coming to trial, it has been met with harsh criticism and concern over whether small claims litigants are sacrificing their right to a fair trial under Article 6 of the Human Rights Act 1998. The pilot scheme faces similar criticisms to Alternative Dispute Resolution. Dr. Kate Leader, Senior Lecturer at York Law School, suggests that the small claims paper determination pilot prevents legal development through precedent by filtering out ‘garbage claims’ and making the courts even more inaccessible for those with limited financial aid. Furthermore, Dr. Leader additionally holds the opinion that the pilot scheme risks a litigant’s right to a fair trial for small claims disputes by removing the litigants’ choice to take the trial to a formal hearing. The identification of legal issues and material facts relies on litigants in person (LiPs), who are usually self representative and are less adept at identifying issues in comparison to trained legal counsel. In these cases, judicial guidance and support in the early stages of claims becomes far more critical, but this is only available where there is a hearing. Dr. Leader emphasises that LiPs are obligated to accurately identify legal issues or sacrifice their right to a hearing, even if both parties object to a paper determination. Additionally, unlike multitrack cases, small claims disputes do not benefit from claims management conferences before the hearing takes place, meaning there is less opportunity to determine the most appropriate resolution process for a particular hearing. The pilot scheme uses an amended version of Form N180 which allows the parties to declare whether they think their case is suitable for determination without a hearing. However, Practice Direction 51ZC(4.3)(b) allows the court to allocate cases to be decided without a hearing even if both parties object. While parties can object to the direction by providing a written statement at least 7 days before the date of determination, the decision ultimately returns to the same judge that made the initial allocation, so any change in decision is unlikely. The pilot scheme may well encourage a change in the standard of cases brought to a hearing, whether this will decrease accessibility of the courts to those from lower income backgrounds will be determined over time.

Written by Charlotte Read

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