REVIEW

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SMALL CLAIMS PROJECT

30th September 2002

Introduction

The Small Claims Project was introduced in the Petty Debts Court as a one year pilot project commencing in March 2002 following an initiative from the Bailiff of Jersey, Sir Philip Bailhache, in conjunction with the Jersey Legal Information Board (JLIB).

The initiative was intended to mirror developments in other jurisdictions and was particularly focussed at improving case management within the Court process simultaneously providing an effective and timely means of resolving disputes at minimum cost to either side when pursing or defending a claim.  A JLIB project board, chaired by the Bailiff, was established to run the pilot project and report on its results.

The objective of the scheme was:-

To assess whether or not claims coming before the Court could be resolved more quickly to the advantage of both parties and also to the Court itself.

The success of the scheme would be monitored utilising the following criteria:-

• whether the parties represent themselves rather than use lawyers

• whether mediation should be provided prior to a matter being filed in the Court system

• the impact on Court time due to the number of cases settling

• the impact on Court administrative staff

• the development of a dispute resolution culture as opposed to an adversarial culture

Administration

The practical aspects of the project were introduced by means of a Practice Direction (PD) No.1of 2002 issued on the 12^th February 2002 by the Magistrate Mr. Ian Le Marquand. The PD was widely circulated via the JLIB website and individually to the various Court users by way of correspondence. Additionally the general public were advised via the media.

Simultaneously in mid February, advice notes detailing various Court procedures were generally reviewed and re-published thereby ensuring compatibility between the theory and practical application. Throughout the six month trial period a policy of continual review has ensured that the advice notes reflect the current status of Court procedure.  Questionnaires have been issued throughout to participants asking for feedback and court staff have kept their own statistics

The most significant review came about in June following a meeting of the Small Claims project board. At that time it was recognised that, whilst litigants in person were amenable to mediation and in many instances were taking early advantage of resolving their disputes, in contrast it was evident that lawyers at the time of coming to Court had taken insufficient instructions from their clients.

With effect from the 12^th June 2002, except in very exceptional circumstances, any contested claim coming before the Court has been dealt with as follows:-

Simple actions where both parties are present and are agreeable to mediation have resulted in mediation hearings being booked whilst the parties are present in Court.

Actions which are considered

(i)   to be more complex, or  

(ii)  where either one or both parties have legal representation, or

(iii) where only one party is keen to attend mediation

are adjourned for a six week period during which time the Court directs both parties to file formal written pleadings in accordance with existing Court rules.

When the parties next appear in the Petty Debts Court at the end of the six week period a decision will be made as to whether mediation is a suitable vehicle and a date is booked for a hearing.  Alternatively the matter is set down en preuve in the normal way.

Summary Of Mediation Disputes

Whilst the project board is of the opinion that any measure of the successes of the scheme may be premature nevertheless limited data is available upon which a provisional assessment can be made as to whether the scheme, as it has developed, still meets the original criteria or whether further adjustment is necessary.

To date 21 disputes have been referred to mediation.

A breakdown of these actions is as follows:-

14 actions settled at the mediation hearing;

1 action settled within 48 hrs of the mediation hearing;

6 actions reverted en preuve.

The actions that reverted en preuve did so after it was felt at the mediation hearing that mediation was not appropriate and the matter was best dealt with through the normal Petty Debts Court process.

Additionally, following the change of policy on the 12^th June 2002, a further 23 actions are presently being progressed by way of the submission of formal written pleadings prior to an assessment being made as to their suitability for mediation.

Assessment Of Scheme By Way Of The Pre Determined Criteria

(1) whether the parties represent themselves rather than use lawyers 

Whilst initially it was considered that for mediation to succeed it was essential that both parties should agree to participate this was thwarted by lawyers and other professional bodies in the early stages. They had expressed the view that often insufficient instruction had been taken from clients prior to the Court date itself and furthermore they were unaware of the availability of their clients to attend mediation hearings.

Following a meeting of the JLIB project board in May, since the 12^th June 2002 a more robust view was taken as to how to circumvent this particular situation. Thereafter in contested claims, where both parties were not amenable to participate in a mediation hearing, the Court has directed that formal written pleadings be filed by both parties within a six week period. This decision alone has made a significant contribution to effective case management, contested actions either being referred immediately to mediation or alternatively the pleadings being available for scrutiny by the Court within six weeks of the action being tabled.

It appears from the data collected that without exception Lawyers have responded positively to the development of the pilot project and in many instances claims which in the past would have remained “stayed” because they were uneconomical to pursue have now been progressed by the client themselves.

(2) whether mediation should be provided prior to a matter being filed in the Court system

Given the actual and perceived future successes of mediation it appears that there may be potential for some claims to be resolved outside of the Court system. The advantage of the existing system however is that the procedure is commenced by way of a formal summons compelling the defendant to respond or suffer the consequences.

(3) the impact on Court time due to the number of cases settling

The data available to date does not permit an in depth assessment to be made. 

Historically over the past three years an average of 180 actions each year have been contested of which a very small proportion (average of 20) have subsequently progressed to trial.

Again an annual review of all actions which have been “stayed” for a period of more than two years reveal that, by way of example in April 2002, of the 473 actions which were “stayed” that only 21 were retained.

It is apparent that the number of actions which to date have been subject of mediation hearings exceeds that which may previously have progressed to trial. In making this comparison sight should not be lost of the fact that historically, in a number of instances, trials were being dismissed or abandoned following close scrutiny of the pleadings and bundles by the Judge.

It is felt however by those involved in the running of the scheme that it will result in the more effective use of Court time whilst simultaneously providing a better service to the general public.

(4) the impact on Court administrative staff

Clearly the introduction of the project has had an impact on Court administrative staff albeit it is accepted that previously it would have been impossible to determine what that impact would have been.

It is also accepted that the proposed increase in jurisdiction for the Petty Debts Court would inevitably have resulted in a review of working practices. A proportion of that effort may have been absorbed in developing the current project.

It would appear that following the change in mid June that the situation has reached a plateau and consequently only now is it possible to gauge the long term impact.

That impact has manifested itself in the following ways:-

Advice notes

The development of the project itself and the publication and continual review of advice notes detailing the changes to Court procedure whilst time consuming has been worthwhile and has greatly enhanced the professional standing of the Court and its administration.

Administrative procedures

Whereas in the past contested claims have been filed separately in an alphabetical and date sequence and the management and progression of them has been controlled by either the Plaintiff or the Defendant clearly the revised system has resulted in the Court itself actively taking responsibility for managing a variety of claims all at varying levels of progression in the Court system.

Whilst historically only a small proportion of contested claims have progressed to trial and necessitated the filing of formal pleadings now all contested claims before the Court have added momentum. Consequently systems have had to be introduced whereby individual cases can be effectively managed.

Active support to litigants in person

Claims which in the past have been contested have undoubtedly lost momentum. Clients have probably taken a commercial view, dependant upon the amount of the claim, that in many instances it was uneconomical to pursue them. Inevitably these “stayed” actions would have been weeded at the two year review stage.

In contrast now an early assessment is made and the lawyer reverts back to the client advising them of the opportunity to pursue the claim themselves by way of the mediation process. Inevitably, whereas in the past these litigants in person may have been directed by their Lawyer, now they actively look to the Court staff to assist them.

That assistance may be for a variety of reasons - practical support for the purpose of filing pleadings, making application to the Court for a strike out or judgment in default where pleadings are not filed within the time frames permitted - or alternatively more general support by way of guidance and reassurance all of which can be time consuming.

Clearly, now that parties involved in disputed claims have to file pleadings within a relatively short time frame, more emphasis is placed on the quality and accuracy of the submissions. On occasions that defects are encountered adjustments may have to be made within relative short time scales and to an extent the responsibility to organise this now rests with the Court Greffe given that the Court has adapted to a more active rather than a reactive role. 

Active management of claims

In addition to theadministrative aspects already commented upon, prior to the commencement of each Court session, the Greffier will appraise the Judge of the status of any adjourned action which is being progressed towards mediation. This may involve scrutinising the pleadings of several actions in order that an assessment can be made of the validity of the claim and defence in addition to consideration as to whether mediation is appropriate. Previously this assessment would only have been made after the pleadings had been filed and at a time after the parties had fixed a date for a trial.

During the Court session itself the allocation of appointments for mediation will be made however in the event that those arrangements need to be altered it falls to the staff within the Magistrates Court Greffe to organise.

Post Court the administration associated with general indexing, cross referencing and filing has increased in recent weeks given the more active status of some of the actions.

Impact on staffing levels

In addition to that which has already been referred to the mediation hearings themselves, held every Friday morning, require varying elements of preparation.

In all instances wherever possible, given that the hearings themselves are conducted within a 45 minute period, Acts of Court reflecting a possible agreement between the parties are prepared in a draft format on the Thursday. This enables the Greffier to edit the documents during the mediation hearing itself in order that where parties reach an agreement it can be documented in their presence and signed.

(5) the development of a dispute resolution culture as opposed to an adversarial culture

On reflection, taking into consideration that in the majority of disputes relatively small sums of money are involved, people do generally demonstrate a willingness to negotiate in order to find a resolve. Often the dispute arises either from a genuine misunderstanding or alternatively the relevant facts are simply seen from a different perspective. Mediation simply provides an early opportunity to listen to the other persons view before parties become too entrenched.

Results Of Survey

Of the 21 actions which have been subject of mediation hearings to date questionnaires have been returned by 12 participants.  Of those 8 resulted in a successful outcome at mediation.

Generally feedback has been very supportive, and the project board is of a view that litigants in person have, in the majority, been genuinely appreciative of the service offered.

Conclusions To Date

Mediation provides an opportunity to litigants in person for an early assessment of the merits of their claim or defence thereby ensuring that any deficiency is detected sooner rather than later. It provides a quick and informal resolution to disputes whilst keeping costs to the minimum.

The increased dependency on staff within the Magistrates Court Greffe to offer advice in respect of procedure and provide practical support where necessary further enhances the concept of making the Court more accessible to litigants in person but it does have a resource impact which has yet to be fully assessed.  In some instances that dependency has extended beyond the mediation hearing.

Whilst case management is now a reality it has been achieved at a cost. The emphasis of management has perceptibly shifted from that of the parties to the action, and their lawyers where appropriate, to the Magistrates Court Greffe itself.

The scrutiny of pleadings and their formal acceptance by the Court has also now become a necessity. These aspects together with other procedural matters cannot reasonably be expected to be dealt with by all members of staff who ordinarily fulfil other responsibilities, do not necessarily have the appropriate skills and experience, and in any event have other priorities.  

The publication of reasonably comprehensive advice notes, intended to minimise the impact on resources, whilst achieving some success nevertheless did not take into account individuals needs to seek a more personal service and reassurance.

Accordingly the JLIB project board feels that the project is currently meeting its objectives and is providing a valuable and worthwhile service to the general public.  The Board will continue to monitor this project for a further six months to the conclusion of the pilot whereupon a further report will be issued.