Litigants with claims of less than £500 should be compelled to attend a mediation appointment – and their case stayed if they refuse, the judicial advisory body has recommended.

The Civil Justice Council has published its final report on the resolution of small claims, seeking to find a more proportionate process which is capable of being handled by litigants in person. As well as forcing claimants into mediation for all claims outside of personal injury and housing disrepair, the report also suggests that any defendant’s refusal to engage in mediation will be deemed unreasonable behaviour.

The report recommends a full review of the adequacy of HM Courts & Tribunals Service signposting and guidance for potential litigants, which should include new videos to guide them through the process.

The CJC also proposes a specific pre-action protocol for small claims under £500 which should set out, in simple and straightforward language, the relevant procedure and highlight the need to consider pre-issue mediation/alternative dispute resolution. Parties to a small claim should be asked to confirm (by ticking a box in any hard copy form or digital page) that they have read the pre-action protocol.

In an interim report produced last summer, a CJC working party recommended that HMCTS should set a target that no case in which the parties opt into mediation should reach a court without a mediation appointment being offered. Further investment in the service should be considered if this standard could not achieved in the near future.

The latest report notes that the small claims mediation service has undergone significant change to ensure better performance and an appointment is now offered in all suitable claims. It follows that potential parties to small value litigation should be ‘clearly informed’ that mediation is compulsory in defended cases.

The report states: ‘An increased number of these modest value claims could be resolved with clear advantages to the potential litigants/litigants (who would be spared incurring further costs and devoting more time to the claim) and a beneficial effect upon the availability of judicial and administrative resources for other claims.’

It adds that, if compulsion is to work, some effective sanction must be available for those refusing to co-operate.

Mr Justice Cotter, chair of the working party, said: ‘As the large majority of claims issued in the civil courts involve sums less than £10,000 the approach taken to the management and resolution of small claims is of critical importance.

‘We believe that the recommendations in this report could reform the litigation experience for litigants in person with modest financial claims, who are by far the largest group of court users, maintain public confidence in the civil justice system and allow limited judicial and administrative resources to be properly focused.’

All recommendations in the report will now be considered by the rule committee.

 

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