Proposed reforms of the small claims procedure would deal a devastating blow to justice.
As an essential part of the civil justice system, the small claims procedure is designed to handle low-value disputes, including debt and contract matters. It enables the public and businesses to pursue low-value claims with the aim of resolving them quickly and fairly.
The small claims procedure is not designed for more complex, higher-value cases. This is recognised in that the small claims limit for personal injury is currently £1,000. Many personal injury claims, even at lower value, can be complex and result in an inequality of arms where the claimant is unrepresented and seeking to bring a claim against a defendant who can afford to take legal advice.
Difficult issues relate to liability, causation and medical evidence. If fairness is to prevail it is important to ensure that people who have suffered injury as a result of negligence are able to get the legal advice they need from specialist solicitors.
The announcement in the 2015 autumn statement that the small claims limit for all personal injury road traffic accident (RTA) claims will be raised from £1,000 to £5,000 is therefore deeply concerning. A new limit of £5,000 would mean serious personal injuries, including some facial scarring, would be considered ‘small claims’.
The proposed five-fold increase to the existing small claims limit would deny many thousands of people legal advice and representation by a solicitor. The linked proposal to remove the right to general damages for less serious soft-tissue injuries would have a further and profound impact on access to justice.
Personal injury claims, even at lower values, can include serious injuries arising from the fault of an employer or public authority where legal rights are complex and the injuries caused can be debilitating. Any barrier to victims bringing claims caused by the negligence of another is unacceptable.
In many cases the defendant is a well-resourced company with ready access to legal advice and representation, and able to use its position of knowledge and experience to avoid or under-settle claims. Without legal representation the ordinary person will not be able to assess the value of their case or the injuries they have sustained and therefore may be unable to claim the amount they are entitled to in law.
These proposals are a further devastating blow to UK justice and would hit the most vulnerable in society; individuals who may not have the confidence or the ability to go to court and assert their right to justified and fair redress.
The Law Society is not alone in seeing the issues this proposal could raise. An increase in the small claims limit in personal injury has been considered and rejected by successive governments, precisely for the access to justice reasons outlined above. Lord Justice Jackson in his final report ruled out any such rise. In 2013 the Transport Select Committee concluded that the limit should not be raised as access to justice would be impaired. It expressed concerns that the use of the small claims track could be counterproductive in efforts to discourage fraud and exaggerated claims.
Further, with no recoverable legal costs, the market would be open for claims management companies using damages-based agreements, who could swamp the system by encouraging high volumes of claims to make their businesses viable. This is not in the interest of the public or those with legitimate claims.
The Law Society is gravely concerned about this issue and will be raising it with parliamentarians so they understand the full impact of these proposals on the ability of claimants to seek justice.
We are building the case to show the damage to access to justice for injury victims and joining forces with the Association of Personal Injury Lawyers, the Motor Accident Solicitors Society and others to work to encourage the government to reconsider its proposals.
Catherine Dixon is chief executive of the Law Society