Dealing with small claims

Press, 17 December 1976, Page 12

Dealing with small claims

Any major overhaul of the country’s court system will have to await the report — due in December, 1977 — of the Royal Commission of Inquiry into the courts which was established two months ago. The Commission has been empowered to report on, among other things, changes which will ensure ready access for people to the courts for the determination of their rights and the remedying of grievances. But the Government has decided to proceed, immediately, with one small change which should contribute to this goal. Early next year small claims tribunals will be set up in three centres so that the value and efficacy of such an institution can be tested.

The plan has the support of both political parties. The act under which the tribunals will be established was originally introduced by the Labour Government and the Labour Government also had plans to test the idea by setting up two or three pilot projects along the lines the National Government has now announced that it will follow.

The failure of the courts to deal cheaply and efficiently with disputes and claims involving relatively small amounts of money, especially in cases where the amount in dispute is less than it would cost to take the case to court, has long impaired people’s confidence in the administration of the law. If the new small claims tribunals simply made it easier and cheaper for large firms to recover debts owed them, they would probably do little to restore confidence among the general public in the courts as a means of settling minor disputes or of obliging people to meet their lawful obligations. But the tribunals cannot be used simply for the collection of debts except in certain restricted circumstances.

The Government’s aim in establishing the tribunals, on a trial basis at first, is to see whether many disputes between individuals or between individuals and firms cannot be resolved by relatively informal arbitration rather than by the more expensive and complicated procedures of the magistrates’ courts. But because arbitration cannot be expected to work in all cases, the tribunals will have the power to lay down judgments and to have those judgments enforced. The public could not be expected to have any confidence in the ability of the tribunals to resolve disputes unless they had these back-up powers. Nor can the public be expected to have confidence in the tribunals if they prove to be too casual or less than thorough in their investigations. The referees who will sit on the tribunals will be obliged to have regard for the law but will not be bound to give effect to strict legal rights or obligations or to observe all legal forms or technicalities. The referees will have to convince people that they have nothing to lose by forgoing legal representation or the procedural safeguards of the magistrates’ courts.

The aim of setting up small claims tribunals is to simplify the administration of justice, but the act under which they will be established is complicated. The Justice Department will have to launch an intensive campaign of public education to ensure that people know in what circumstances they can approach the tribunals, what procedures will be followed when the tribunals are dealing with a claim, and what obligations they may be incurring. The experiment will not succeed unless people in the three trial centres know about the tribunals and also have sufficient confidence that fair decisions will be made on cases submitted to them.