FURTHER REVIEW
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SMALL CLAIMS PROJECT
1st July 2003
Introduction
This report should be read in conjunction with a previous report submitted on the 30th September 2002 and reflects a further review of the Small Claims Project which was introduced in March 2002.
Administration
During the intervening period of time since the initial review the procedures remain relatively the same. In contested actions however, where it is appropriate for the Court to adjourn the action pending the filing of written pleadings, the adjournment period has been extended from 5 to 6 weeks.
Summary Of Mediation Disputes
To date 75 disputes have been referred to mediation.
As previously highlighted however 4 actions should be excluded from any formal assessment; in two instances the Plaintiffs withdrew the proceedings, in another the Defendant had used mediation as a device to frustrate the Plaintiff and in another the Plaintiff was vexatious.
A breakdown of the remaining 71 actions is as follows:-
29½ actions settled at the mediation hearing
5 action settled post mediation hearing
4 judgments at mediation – party failed to attend – 1 challenged
4 not held
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42½
1½ settled action enforced through Court
3 actions progressed to trial – actions dismissed
18 actions reverted en preuve 5 of which are not being progressed
1 trial pending
5 mediations pending
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71
Assessment Of Scheme By Way Of The Pre Determined Criteria
Following on from earlier observations JLIB will further review the criteria set at the commencement of the project in order that the success or otherwise of the scheme can be assessed.
(1) whether the parties represent themselves rather than use lawyers
Lawyers continue to respond positively to the mediation concept. Some have attended mediation hearings and have actively participated in the process which has been beneficial to all parties concerned.
(2) whether mediation should be provided prior to a matter being filed in the Court system
JLIB’s initial thoughts concerning this remain unchanged.
(3) the impact on Court time due to the number of cases settling
Comparison of data for relevant time frames during 2002 and 2003 reveals that whilst there has been a decline in the number of actions tabled in the Petty Debts Court the number of adjournments has increased.
Whilst it is too early to predict numbers for 2003 nevertheless it is evident that there has been a significant reduction in the number of actions becoming stayed in comparison with previous years. Additionally the number of contested actions (24 en preuve to date this year) has also reduced considerably in comparison with 181 actions in 2001 and 95 in 2002.
Consequently JLIB has no hesitation in stating that the scheme continues to provide a better service to the general public.
(4) the impact on Court administrative staff,
The introduction of the small claims facility was timely. The perceived impact on resources whilst predicted has not materialised. The introduction of the scheme coincided with the temporary retention of an additional Greffier. In the event that that additional resource is relinquished the proposed increase in jurisdiction for the Petty Debts Court will inevitably significantly impact on Court administrative staff.
Having addressed certain issues in its original report JLIB will now further review those:-
Advice notes
These continue to be reviewed at regular intervals and the process no longer has a resource implication.
Administrative procedures
Policy now dictates that the majority of contested claims coming before the Court are assessed at the first Court hearing.
- In appropriate circumstances, particularly where there has been no communication between the parties and the dispute appears to arise from a misunderstanding, the Court will adjourn the proceedings for two weeks and in doing so it directs the parties to meet with a view to determining a solution to the dispute.
- Alternatively simple disputes are immediately diverted to mediation and appointments for hearings are made whilst both parties are present in Court.
- In more complex cases the proceedings are adjourned for 6 weeks in order for formal written pleadings to be filed.
Thereafter depending upon how matters progress the Court maintains effective management of the proceedings thereby ensuring that they are progressed in timely fashion to a conclusion.
Active support to litigants in person
The Magistrate’s Court Greffe continues to support litigants in person irrespective of whether they are a plaintiff or defendant.
Active management of claims
This is ongoing.
Impact on staffing levels
Previously commented upon.
(5) the development of a dispute resolution culture as opposed to an adversarial culture.
Whilst mediation provides an opportunity for parties to negotiate in some instances the intransigence of one or both the parties and the insistence to go to trial does frustrate the concept of mediation – that of providing litigants in person an opportunity to resolve disputes both quickly and at minimum expense.
Results of Survey
Whilst data has continued to be collected from persons who have participated in mediation hearings no in depth study has been made.
It is however JLIB’s opinion that persons have been genuinely appreciative of the service offered.
Conclusions
Mediation continues to provide litigants in person with a quick and informal resolution to disputes whilst keeping costs to the minimum.
Magistrates Court Greffe staff continue to offer advice in respect of procedure and provide practical support where necessary. This support is supplemented by comprehensive advice notes which address a variety of topics.
Whilst the introduction of the initiative has had an impact on resources in the longer term this will be countered to some extent by fewer stayed actions being held on file. Further benefits will accrue from 2005 onwards when fewer actions will need to be incorporated within the table supplementaire.
JLIB has no doubt that the project is currently meeting its initial objectives. It continues to provide a valuable and worthwhile service to the general public.