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Small Claims Mediation in the Petty Debts Court of Jersey

Presentation to The Commonwealth Magistrates and Judges Association

J. G. P. Wheeler
Master of the Royal Court
22ndSeptember, 2004

Introduction

1. The Petty Debts Court was established in Jersey by statute in 1853. As its name suggests, its primary function was to deal with small liquidated claims. In addition, the Court has always had jurisdiction to deal in minor landlord and tenant cases. The Judges of the Court are the Magistrates who also exercise jurisdiction over more minor criminal matters in the Magistrate’s Court. Both Courts are served by the same administrative staff.

2. By 2001, the jurisdiction of the Petty Debts Court had been increased to the sum of £2,500 (just over US$4,000) and it also continued to exercise powers in relation to landlord and tenant disputes as described above. With effect from this year, the jurisdiction of the Petty Debts Court has been increased (pursuant to the Petty Debts Court (Miscellaneous Provisions) (Jersey) Law 2000 and Rules made thereunder). The Court can now deal with both liquidated and unliquidated claims up to £10,000 (approximately US$17,000) and still retains its jurisdiction in relation to landlord and tenant disputes.

Small Claims Mediation Pilot Project

3. In March, 2002, a pilot project was introduced into the Petty Debts Court (originally scheduled to run for a year) on the initiative of the Bailiff of Jersey with the support of the Jersey Legal Information Board. The initiative sought to mirror developments in other jurisdictions in introducing into the Court process an effective and timely means of resolving disputes at minimum cost by way of mediation. Improvement in case management procedures was also intended. The objective of this scheme was to assess whether claims coming before the Court could be resolved more quickly to the advantage of both parties and also the Court itself. It was introduced as a trial project so that its success could be monitored. In particular, regard was to be had on whether mediation and the development of a dispute resolution culture as opposed to normal adversarial Court proceedings would find favour. In addition, bearing in mind the relatively small value of claims in the Petty Debts Court review would be made as to whether parties represented themselves rather than used lawyers. At the same time the impact of the scheme on Court time (both by successful mediations and actions settling generally) and on Court administrative staff and services provided would also be reviewed.

4. The practical aspects of the project were introduced by means of a Practice Direction issued by the Magistrate which was widely circulated. In addition, written guidance notes about the various Court procedures were issued to assist parties.

5. Mediations were conducted in private and the parties were allocated one and quarter hours for a mediation hearing. The parties remained present throughout the hearing. Each was invited to make oral submissions (approximately five minutes being the norm) and the mediation then developed. Flexibility in approach both by the Court and in the mediation was the keystone and no doubt contributed to the success of the project. Mediations were sometimes referred by the Court immediately after a case was first called if the nature of the dispute made this the appropriate procedure. In other cases, the Court proceedings were adjourned to mediation at a future date with the parties being requested to file formal pleadings or sometimes more general written submissions. Some fine tuning was made to the procedures in the course of the project to ensure and maintain the flexibility which was sought.

6. It was emphasised to parties appearing that the procedure was very different from that of a formal Court trial. Parties were made fully aware that the proceedings and their outcome were confidential and were not matters of public record. In order to monitor the project parties appearing at mediations were invited to complete questionnaires given their views on various matters. This feedback proved valuable in assessing how the new procedure was viewed by those participating in it. It is noteworthy also that the number of mediations at which lawyers were present was very low.

7. The pilot project was kept under review and was continually assessed. In July, 2003, the Bailiff together with representatives of the Jersey Legal Information Board reviewed the operation of the scheme. At that time, some 75 disputes had been referred to mediation. Overall, the scheme seemed to operate successfully with something like 60% of cases referred to mediation being resolved. Furthermore, it became apparent that even where mediations were not successful the mediation hearing was followed by actions being settled or not being progressed further.

8. As part of the review process the impact of mediations on Court time and on administrative staff was kept under review. In addition, as previously stated administrative procedures were adapted during the operation of the scheme in order to maintain the high level of flexibility which seemed to be an important factor in the success of mediations.

Conclusions Following the Pilot Scheme

9. Following review of the pilot scheme in July 2003 it was quite clear that mediation did provide to litigants in person a quick and informal resolution to disputes with costs being kept to a minimum. Administrative staff of the Court continued to offer advice on procedural matters and also to provide practical support where necessary. This support was supplemented by comprehensive advice notes addressing a number of topics. In my view, it is quite clear that a key reason for the success of mediation has been the invaluable support provided by the Court administrative staff to litigants. This has undoubtedly ensured smooth progress and also general acceptance of mediation by those who have participated in such proceedings.

Mediation Incorporated into New Petty Debts Court Rules

10. Mediation provisions have now been incorporated into the Petty Debts Court Rules 2004 which came into force on 1st June, 2004. At the same time the jurisdiction of the Petty Debts Court was increased to £10,000 in the manner described above.

11. Rule 28 of the Petty Debts Court Rules 2004 merely provides that at the first or any subsequent hearing of any disputed proceeding the Court may adjourn the proceedings for mediation on such terms as it considers appropriate and may give such consequential directions as it thinks necessary for that purpose. The Rule is supported by a Practice Direction which sets out in more detail provisions relating to the conduct of mediations. A formal structure of this nature continues to allow for the flexibility of changes being introduced if considered necessary relatively quickly and without the need to amend legislation. Any changes thought necessary could readily be introduced by the issue of a new Practice Direction.

Conclusion

12. Mediation is now firmly established as part of the procedure for small claims disputes before the Jersey Courts. Experience shows it to be a valuable addition to assist in the resolution of small claims. It also reflects the more general trend in Jersey (as in many other jurisdictions) of Courts adopting a positive involvement in the case management of actions generally and in providing a wider range of facilities to enable parties to resolve their disputes without always requiring the Court to determine such disputes at a full trial.

Page last updated 02 Apr 2012