Is the Small Claims Court or Arbitration fit-for-purpose for Consumers?

For several years I have been speaking and meeting with ordinary Consumers, who face up to their complaints and refuse to take no for an answer.

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Small Claims Court Arbitration Access to Justice

Whilst this is an admirable trait,

they will often encounter problems when they try to escalate their complaints through a resolution service or before the small claims court.

Consumers are very often unprepared for the rigorous process that lays ahead; they are encouraged to enter these resolution processes because they are told that taking such routes are simple! The recent evidence from Lord Keen to the Justice Select Committee suggested that things were about to get a whole lot easier through ‘user-friendly’ pre-action protocols (Q.71). He also suggested that judges would have to become more proactive in the management of cases as more ‘Litigants in Person’s’ bring their cases to court (Q.94).

Many of the complaints & observations I have received include:

  1. In Arbitration, Consumers are encouraged to complete the ‘simple’ documentation, only to find that when the the other side respond, they do so in a very legal way with clear support from someone who is legally qualified;
  2. Again in Arbitration, Consumers have revealed to me how an Arbitrator has clearly failed to read, let alone understand the case, particularly if the ‘Claimant’ is raising serious points or breaches. In those cases, Consumers have had decisions made against them and then they are locked into a difficult appeals process, a claim that they have not had a ‘fair hearing’ and less than enthusiastic lawyers willing to provide them with help;
  3. Judges I have spoken with, tell how they are met with the disorganised ‘Litigant in Person’.  Judges are presented with boxes or folders of information; nothing suggesting any attempt at organisation. In those cases, those same small claims court judges are already doing what Lord Keen is suggesting; they organise the papers during the hearing and help the parties come to a conclusion - but how effective is that for the Claimant’s case - will they get the just result they are seeking?
  4. Another area of concern for Consumers is that they very often do not know how to set their case out and some have demonstrated to me that whilst they had a good overall case, the lack of detail or information they place before the court either results in their case being thrown out or achieving a resolution well below their expectations;
  5. Of greater concern is how Consumers have revealed that they have experienced a less than sympathetic or bad-tempered judge, in an environment which is alien to most Consumers. Shouting, sarcasm, failing to read papers, refusing to hear the Claimant’s side of the story are just some of the complaints I have received. If correct, then this type of behaviour does not serve justice well, leading to a growing spread of opinion that its simply not worth it!

At this point in time we just do not have a government that has sufficient interest to fix these experiences. Bound by prejudice and agenda, government is transfixed to make access to justice not easy, but difficult through limiting costs, limiting the role of legal advice and assuming that these 'justice-routes' can be resolved through ‘user-friendly’ methodologies. This is all without any ‘brexit-factor’ and any reduction on rights!

It is time to recognise that the best way to maintain high standards is to ensure that we have a justice resolution process that is fit-for-purpose; present form and rhetoric does not lead me to conclude that this is going to happen any time soon; we should all be very concerned indeed!