The small claims track’s (relatively) simple and informal procedures and its strict limit on the recovery of legal costs encourages litigants to ditch lawyers and take it upon themselves to conduct their own litigation. Until recently, claims were limited to a value of £5,000, but as of 1 April 2013, the small claims track has had its limit increased to £10,000. Whether this is of benefit to litigants in person very much depends on their individual circumstances.
Perhaps the biggest impact will arise from the newfound need to fund litigation for claims ranging between £5,000 to £10,000, since winning litigants will not be able to recover their legal costs from the losing party (with few limited exceptions). To exacerbate matters, such a significant increase in value may bring with it an equal increase in the complexity of the case. There is likely going to be an increase in litigants in person for claims within that range who find themselves unable to put forward their best case without professional legal representation.
How the litigant in person deals with the situation will depend on their particular circumstances. Individuals may have the toughest time of all. Learning about and running the litigation whilst remaining on top of work and family responsibilities is a task so gigantic that it may discourage some from pursuing their case. If some money is available, there are some enterprises, like Briefcase Law, who provide practical help and assistance with claims, though the individual is still responsible for conducting the litigation himself.
Otherwise, legal contacts may prove the best and only relief. Note that a litigant in person may be assisted at trial by a McKenzie friend (layman or professional, remunerated or not), though such assistance is limited to moral support, help with case papers and quiet advice on conduct.
SMEs are better placed to deal with the changes themselves. As litigation is recurring, we may start seeing, either out of necessity or managerial initiative, employees take it upon themselves to act as litigants, gaining experience and legal proficiency over time. Indeed, SMEs may feel empowered by these changes, able to take action more often without needing to resort to lawyers. Of course, litigation can be an arduous and time consuming process which, taken with the commercial inviability of instructing solicitors, may dissuade businesses from pursuing their claims at all.
It is not just for the litigants themselves to adapt to these changes. The judiciary too will have to take positive steps to ensure that the rise in litigants in person is well met. There will be pressure to simply legal terminology and procedure and to improve reasonable court-side assistance for litigants in person.
With regard to procedure and court assistance, judges may find it beneficial to take on a more active role at trial, something akin to an inquisitorial system. Though a big shift from the traditional adversarial system, it would aid the litigant in person present relevant case details and leave him feeling less alienated and baffled at court conduct. Whether it will happen is a different question.
Words: Diogo Gouveia
Picture: DezCreates (https://secure.flickr.com/photos/botunda/)