The ministerial foreword to the government’s response to the consultation Solving Disputes in the County Courts states: ‘An effective justice system is the cornerstone of a civilised society… upon which ordinary members of the public rely every day to resolve bread-and-butter issues that really matter in their lives.’

The objective is said to be to empower people with the knowledge and the tools to resolve their own disputes. On first reading, the government’s response seeks to provide common-sense solutions to the problem of access to justice for all. However, a number of the proposals do not improve access to justice, but affect disproportionately those least able to access justice.

The government’s response proposes that the small-claims limit be increased to £10,000. To alleviate concerns about access to justice, the government proposes that the judiciary will be able to transfer more complex claims to the fast track even if the value is less than £10,000, and will also have the option of transferring business-to-business cases with a value of greater than £10,000 to the small-claims track. The detail of this proposal will be important in assessing how it impacts on the most vulnerable court users. Two issues arise: the impact of the increase in small claims on ordinary court users, and the effect of an increased workload on an already overstretched county court system.

In small claims, the costs of legal representation are not recoverable, save in limited circumstances, and the majority of the public already represent themselves. The number of unrepresented parties will inevitably rise with the increase in the small-claims track limit. The government’s assessment is that a further 4,500 claims will become small claims.

To overcome the impact of an increased number of cases in the county court, the government proposes an automatic referral to mediation for all claims of £5,000 or less. This is merely a change in emphasis. In most county courts, a telephone small-claims mediation service already exists, to which small claims are routinely referred. The government’s own statistics suggest that despite such referrals 54% of small claims still go on to final hearing, since unrepresented parties often want their day in court.

While mediation is an important part of our civil justice system, it should not be used as a way of excluding the public from the courts. For many people, small claims concern the bread-and-butter issues that matter in their lives. They are the difference between a small business surviving or failing.

For most people £10,000 is an enormous amount of money. They will now have to pursue these claims without legal representation or recognise that they will not recover their legal costs. The government’s impact assessment recognises that successful parties who cannot recover their legal costs may feel worse off and that irrecoverability of costs may have an adverse impact on legal service providers. It suggests that this is offset by gains to those who will be empowered to resolve their own disputes without recourse to legal representation, with earlier outcomes and payment. The reality is that the ability to enforce any judgment or mediated settlement successfully does not necessarily follow from a successful outcome, however early.

County courts are already overstretched and barely coping with their existing levels of business, particularly the significant increase in litigants in person who take up a disproportionate amount of administrative and judicial time. Taken with the other proposals for expanding the county court jurisdiction, the increase in the small-claims limit will increase significantly the overall workload of the county court.

Far from improving access to justice for ordinary members of the public to resolve the bread-and-butter issues that really matter in their lives, without a substantial amount of investment these reforms are likely to bring an already overstretched county court system to a standstill. The only merit of that will be the increased capacity of the High Court to continue to service international disputes.

Francesca Kaye is vice-president of the London Solicitors Litigation Association and a partner at Russell-Cooke