The likelihood is that the majority of litigators have never ventured down into the basement of the county court where retailers and their embittered customers, and landlords and their carpet-staining former tenants scream out their stories and storm out if they lose. This is the basement which hosts small claims, sometimes jaw-droppingly petty but frequently raising questions of law which would be worthy of a day and a half in the Supreme Court and a dissenting judgment or two.
The restricted costs regime which operates on the small claims track is the main reason that, save for road traffic claims, lawyers are rarely involved in its cases. The winner must bear his own legal costs unless he can satisfy the district judge that the loser has behaved unreasonably (not easy, although a failure to turn up or a litany of barefaced lies may be enough), and even then he may only be awarded a summarily assessed proportion of them.
All the winner will generally be able to collect are the fixed costs on commencement, court fees, travelling expenses for the winner and his witnesses, loss of earnings for the winner and his witnesses capped at £90 per day each and expert fees, the cap for which rose from £200 to £750 from 1 April (it being arguable that this would allow a jointly instructed single expert’s report for up to £1,500 with each of two parties being required to pay the expert £750 when permission is granted and the losing party being ordered to pay the winner £750 in respect of his outlay).
The basement became substantially more respectable on 1 April as the usual ceiling for money claims started thereafter was doubled to £10,000 by the Civil Procedure (Amendment) Rules 2013 SI 2013/262, the primary exception being personal injury claims which are limited to £1,000, although we would not recommend you take out a life assurance policy on that figure. So it is that claims within the £5,000 to £10,000 range will be diverted from the fast track to the small claims track, and claimants who have hitherto deliberately deflated claims to £5,000 so as to tumble into the basement will be liberated (and, of course, we know a few will be replaced by deflation to £10,000).
Almost unnoticed was an accompanying change which has given district judges a discretion to allocate to the small claims track a claim with a value of more than £10,000 without the consent of the parties which had formerly been mandatory (by the removal of CPR 27.7(3)). Hand in hand with this change is the abolition of the much neglected provisions (CPR 27, 14(5) and (6)) which allowed for the parties to consent to tracking down but on the basis that fast track costs would apply.
It remains to be seen how district judges will use the new tracking down discretion. It might be hard on a party who has been legally represented on a claim for over £10,000 in expectation that he would win and recover his reasonable and proportionate standard basis costs, to be subjected to a tracking down and, if he does win, the likelihood of small claim restricted costs. But the exercise of the discretion cannot be ruled out where, for example, the claim modestly exceeds the £10,000 limit and the parties are in person.
Indeed, why for the sake of a couple of thousand pounds inflict on prospective floundering litigants in person – though one of them relishes the idea – the paraphernalia of the fast track with its wondrous procedures for standard disclosure by list, mutual and simultaneous exchange of factual witness statements, pre-trial checklists and trial window? And the court fees are also more expensive. Currently, listing and hearing fees on the fast track total £655 as against a hearing fee of £325 for a £10,000 small claim – and on the small claims track, later settlements qualify for a full hearing fee refund, to boot.
Experts – remember, they are the people who tell you what you already knew in language you cannot understand – will very seldom be permitted to give oral evidence on the small claims track. That might be regarded as a good thing. Perhaps even better, the court may be more relaxed about trying a case without experts than on a higher track. Alliott v Cheeld (Blacksmith)  EWCA Civ 508,  All ER (D) 50 (Apr), which went to the Court of Appeal, concerned a metal porch unsatisfactorily constructed by a blacksmith. It was evident when Cheeld was allocated that the court might need to determine the cost of remedying the porch defects.
However, it was directed that no expert evidence would be permitted, and at the small claims hearing the judge made her own evaluation of the sums needed for remedial works based on the evidence before her. The Court of Appeal had no problem with that approach.
It is one thing to risk going it alone on a small claim for £2,500 but quite another to throw away £10,000 because you foolishly asked a question in cross-examination to which you did not know the answer. Claimants on the higher echelons of the small claims track may well now see the sense in taking in a lawyer, if not for the whole proceedings, for certain stages such as help with drafting of the particulars of claim, advice on evidence and presentation or advocacy on the final hearing. Here is an opportunity for practitioners which does not have to be viewed as a loss leader, although it is conceivable that a win will bring in two mirror wills and the next conveyance (albeit with a danger that a failure will bring in a brick through the office window).
Commercial clients who are defendants to small claims and have no in-house legal department may be well advised to follow the same course as the claimants. Even for the tiniest of small claims, commercial defendants are increasingly more inclined to defend what they regard as an unmeritorious claim lest a settlement followed by 10 thousand tweets establishes them among consumers as a soft touch.
A strike-out before allocation on the ground that the particulars of claim disclose no reasonable ground of claim, or the claimant has no real prospects of success, or both, will usually gain them their legal costs (CPR 46.13(2)). Such an application should be made with the filing of the directions questionnaire and the court will normally determine the application before allocation (paragraph 5.3/4 of CPR PD26).
So may we be seeing you then?
District Judge Stephen Gold sits at Kingston-upon-Thames County Court