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5 June 2006
The government has considered the possibility of raising the small claims track limit for personal injury claims for some time now. The Select Committee report (viewable here) suggests a figure of £2,500, which would include the more minor injuries ‘which clear up within months.’ The government‘s response gives away little about its intentions.
This figure is certainly more sensible than the £5000 limit originally suggested. But it would still result in many personal injury claims being brought under the small claims track. Are there that many cases where litigants could sensibly act for themselves? Particularly when the defendant is likely to be insured, and therefore represented? Maybe litigants in person could be directed to ask their GPs for medical reports, and maybe they could rely on judges to make sensible quantum awards.
But what about the decision on liability? A litigant in person cannot sensibly be expected to work through reams of (say) local authority inspection records to find the coded references on which the defendant’s inspector should be cross-examined. Neither could a litigant in person be expected to know about highway law, nor decisions relating to the Occupiers' Liability Acts. Some PI claims worth less than £2500 could sensibly be brought by a litigant in person, but others could not. Without some way of distinguishing between them, a blanket raising of the limit would not be a good idea.
It is also worth noting that a PI claim in the small-claims track may well be less likely to settle than one in the fast track. Although the recent CPR update allows the court to consider an offer to settle when deciding whether to award unreasonable conduct costs, the fixed consequences of Part 36 do not apply. A claimant in person is unlikely to be penalised for rejecting a good offer in a small claim; a represented claimant (or his legal expenses insurers) in a fast-track case very likely would be. Without that incentive to settle, more cases are likely to come to trial.
Of course, the nature of a claim for general damages is that it cannot be precisely quantified. How will an unrepresented person know if his injury is worth more or less than £2500, and thus whether he should instruct a solicitor or act for himself? Will he be expected to consult a solicitor on this point?
On a related note, it has been suggested that the forthcoming update to the CPR will include a fixed-costs regime for appeals from the small claims track. The effect of this will be to encourage litigants to represent themselves at appeal hearings, as they could not recover the cost of instructing representatives.
Is this really sensible? To appear in person in a small claim hearing -- particularly one depending on issues of fact -- is one matter, but to argue a point of law in front of a circuit judge is a different prospect entirely. There are undoubtedly some litigants in person who are capable of doing the latter effectively, but there can be little doubt that they are a very small minority. For the majority, the effect of this rule would be to reduce their opportunity to present their cases effectively.
Tim Kevan, Duncan McNair (Co-editors, PIBULJ)
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