The Small Claims Procedure

The small claims procedure is regulated by RSA 503 in 1973. It is a simple, speedy, and informal method by which an individual appears before a judge of the district or municipal court, presents his or her claim, and explains why another person or business owes money to him or her. Small Claims Court can award up to $5000 in damages (larger claims can be heard, but the maximum that can be awarded is $5000).

Although not required in Small Claims Court, any persons or businesses involved in the proceedings may be represented by a lawyer if they wish. Another aspect of a small claims proceeding is that a judge may ask to hear any evidence deemed relevant and proper, since the technical rules of evidence do not apply in a small claims proceeding.

If the small claim exceeds $1500, the person or business being sued has a right to a jury trial. The defendant must file a written request for a jury trial within five business days of the filing of the small claim, unless the municipal or district court grants more time where the defendant has shown good cause. The small claim will then be transferred to the Superior Court for resolution.

Disadvantages of small claims

There are long standing concerns about the small claims procedure, which have not been tackled by the 1999 reforms. Small claims are not necessarily simple claims; they may involve complex and unusual points of law. The procedure is not simple enough. The consumers’ Association reported in 2000 that the process was still ‘quite an ordeal’ and the level of formality varied widely. The submissions of both the National Consumer Council and the National Association of Citizens’ Advice Bureaux to the Civil Justice Review echoed this feeling. The Civil Justice Review recommended that court forms and leaflets should be simplified, because it is difficult to fill out for people who have not got any knowledge about law at all. The system is still largely used by small businesses chasing debtors, rather than by the individual consumer for whom it was set up. A consultation paper was issued in 1995 suggesting that, in limited cases; the judge might be given the power to award an additional sum of up to £135 to cover the cost of legal advice and assistance in the preparation of the case. I think this idea would really be useful for claimants, and this would give a huge encouragement to the claimants to come to the court. Especially for those who cannot actually afford to hire their own lawyer.

Either party may have a lawyer to represent him or her, but this is discouraged by the fact that the winning party cannot claim back the cost of using a lawyer form the other party, but will have to pay his own legal expenses. Instead of having a lawyer, the claimant or the defendant may have a ‘lay representative’, that is, a non-legally qualified person, with him or her at the hearing to help to put the case.

The system is meant to be quick, but there can still be delays. Although the intention is that the case should only ...

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The system is meant to be quick, but there can still be delays. Although the intention is that the case should only go to court once, there may be several hearings because one of the parties is not ready; for example, they have not brought all their evidence to court. Since the court only sits in working day, this can cause problems as the claimant and defendant may have to take their time off work.

Case is held in open court so members of the public can watch proceedings. The makes the process more frightening for people who are not used to go to court.

There are also problems with enforcement in other words collecting the money from the losing party. Even if the claimant won the case it is left to the claimant to collect the money and can require payment of more court costs to send the bailiff to take possession of goods belonging to the claimant. Even this does not guarantee that the full amount of money will be obtained.

Advantages of small claims

Small claims procedure aims to provide a cheap, simple mechanism for resolving small-scale consumer disputes. Disclosure is dispended with and if the litigation continues to trial, it is usually held in private rather than in open court. The hearing is simple and informal, with few rules about the admissibility or presentation of evidence. No experts may be used without leave. It is usually a very quick process, with 60 per cent of hearings taking less than 30 minutes. Costs are limited except where, by consent, a case with a financial value such that it would normally be allocated to the fats track was allocated to the small claims track. The procedure is designed to make it easy for parties to represent themselves without the aid of a lawyer, and legal aid for representation is not available. Under the Lay Representatives (Right of Audience) order 1992 made under s. 11 of the Court and Legal Services Act 1990, a party can choose to be represented by a lay person, though the party must also attend.

There is little right of appeal: the judge’s decision can be set aside but only on the ground that there has been a serious irregularity affecting the proceedings or the court made a mistake of law. As the court records of arbitrations are concise and do not usually state the reason for the award, the proceedings rarely give raise to an appeal.

The procedure is quick, simpler and cheaper than the full county court process, which is helpful to both litigants and the over worked court system. It gives individuals and small businesses a useful lever against creditors or for consumer complaints. Without it, threats to sue over small amounts would b ignored on the basis that going to court would cost more than the value of the debt or compensation claimed. Public confidence is also increased, by proving that the legal system is not only accessible to the rich and powerful.