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| This research examined the impact of small claims procedure on personal injury claimants and personal injury litigation at different stages in the life cycle of low value personal injury claims The study was commissioned in 1994 and involved cases dealt with between June 1993 and October 1994 in 5 sheriff courts. The study involved 90 interviews with personal injury claimants and litigants, defenders, lay and legal advisers, and sheriffs. Almost half of the interviewees were party to 20 specific personal injury actions raised under small claims procedure and many of the cases were observed in court at different hearings. The impact of small claims procedure was examined at 6 stages of the claim and specific problems relating to personal injury claims were identified. Small claims procedure was assessed in the light of these findings and potential avenues for change in the handling of low value personal injury actions were suggested. The research was conducted by Elaine Samuel at the Centre for Social Welfare Research, Department of Social Policy, University of Edinburgh. |
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| Main Findings |
- Small claims procedure made an impact on low value personal injury claims from the time they were initiated up until the time they were heard in court.
- The impact of small claims procedure extended to claims beyond its own remit of £750.
- Personal injury claimants found it difficult to assess the legal basis of their claim without legal advice.
- Small claims procedure was responsible for limiting the availability of legal advice and assistance to personal injury claimants.
- Advice agencies were unable to provide personal injury claimants with legal advice and assistance.
- Both assisted and unassisted personal injury claimants found it difficult to negotiate a settlement when the value of their claim fell within the remit of small claims procedure.
- Unassisted personal injury litigants were often unaware of the legal basis of their action and found preliminary hearings both intimidating and unhelpful.
- Unassisted personal injury litigants found it difficult to pursue their action at full (proof) hearings, and were rarely successful when they did so.
- Unassisted claimants were particularly vulnerable in personal injury litigation because they were more likely to come face to face with litigation and reparation specialists in court.
- Sheriffs were reluctant to play an interventionist role where one party was legally represented, as was usually the case in personal injury litigation.
- Though small claims procedure reduced access to advice, negotiation and other pre-litigation assistance, it did provide some claimants with the opportunity to litigate by reducing financial risk.
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| Background to the study |
| Small claims procedure was introduced into the Sheriff Court in 1988 to replace standard summary cause procedure for actions under £750. In keeping with the aims of small claims procedure elsewhere, it was to be cheap enough so as to present litigants with minimal financial risk and simple enough to use without legal representation. Expenses are therefore limited to a ceiling of £75 and legal aid is not available for representation under small claims procedure in Scotland. 1 |
| Prior to the introduction of small claims procedure, Scottish Courts Administration made a commitment to monitor its implementation on the understanding that some changes may be needed in the light of litigant and court experience. The inclusion of personal injury actions within the remit of small claims procedure had been recognised as potentially problematic from the start. 2 It was decided to include personal injury actions in small claims procedure, however, while keeping them under surveillance in the course of monitoring the overall impact of small claims procedure implementation. |
| The impact of the new legislation was the focus of a detailed research study 3 in which concern was raised about the inclusion of personal injury actions in small claims procedure. Unrepresented individuals were reported to experience difficulties in establishing their case in court, while the £75 ceiling on expenses was said to be too low to reimburse victims for the cost of expert witnesses, medical reports and other requirements of successful litigation. However, the study was unable to engage in more systematic investigation of personal injury litigation since too few actions were raised under small claims procedure in the study courts during the research period. In particular, the views of personal injury litigants had not been canvassed. |
| The current research was commissioned to address the appropriateness and impact of small claims procedure specifically upon personal injury litigation. |
| The aims of the research were: |
- to identify problems (if any) relating specifically to the handling of personal injury actions under small claims procedure,
- to identify the impact of small claims procedure on recourse to personal injury litigation,
- to suggest what changes, if any, are required to resolve any identifiable problems.
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| Information was collected from different sources to examine the impact of small claims procedure on personal injury claims at different stages in case proceedings. |
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| Findings |
| Making Personal Injury Claims |
| One of the basic requirements of small claims procedure is that it is accessible to complainers without recourse to professional legal advice. The decision to take legal action, however, requires making an assessment as to the legal basis of the claim. The research found that most victims were not aware of the basic principles of reparation law, such as duty of care, fault/negligence, harm and causation, to make this decision unaided. The decision to take legal action also involves making an assessment of what courses of action are open. Few of those who had raised personal injury actions under small claims procedure were aware of its existence prior to seeking legal advice, let alone the implications of small claims procedure for risk and expenses. |
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| Seeking Advice |
| Personal injury claimants with low value injuries had great difficulty in accessing legal advice. Lay advice centres usually referred personal injury victims to legal advisers. The quality of legal advice received depended on claimants funding or referral. Solicitors in private practice were reluctant to take on low value personal injury claimants because defenders were restricting the expenses component of out of court settlements to the small claims ceiling of £75. This was having an impact on claims well above the summary cause ceiling of £1500. Legally aided clients were usually offered no more than initial advice under Advice and Assistance. clients funded through legal expenses insurance or trade union cover fared better, however, since solicitors were able to absorb the cost of taking |
| on low value personal injury cases as long as the sources of their referral continued to supply them with more highly valued cases. |
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| Negotiating Claims |
| Like other cases, most personal injury claims are expected to be resolved out of court and through negotiation. The research found that unassisted claimants were at a distinct disadvantage in negotiating personal injury claims since they usually faced large bureaucracies and other professional legal representatives, such as insurance companies and local government. It also found that small claims procedure put legally assisted claimants at a negotiating disadvantage in low value claims, including those with a claim over £750. Negotiating power was reduced by the expenses ceiling on small claims procedure amongst privately funded clients, and by the ineligibility for legally aided representation under small claims procedure amongst legally aided clients. Claimants referred by legal expenses insurance companies and trade unions were in a stronger negotiation position since, as 'repeat players', their lawyers took a long term view with respect to each case. However, because resources are invested by both parties in personal injury cases at different points in time, small claims procedure gave defenders the upper hand even when pursuers, like defenders, were 'repeat players'. |
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| Raising a Personal Injury Action |
| The decision to raise an action after failure to negotiate a settlement depended upon the kind of assistance being given to claimants, and the funding of that assistance. Where they were unassisted, some claimants were found to raise actions unaware of the legal basis of their claim. Where they were assisted, the decision to proceed was based on complex considerations of which clients were sometimes unaware. The research found that small claims procedure gave some risk averse claimants the opportunity to litigate. Some did so by lowering the value of their claim so as to fall within the remit of small claims procedure. |
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| The Preliminary Hearing |
| Difficulties faced by unassisted litigants in personal injury cases were often exacerbated at the preliminary hearing. Party litigants did not know how to deal with legal procedures, they felt intimidated by the court and they usually faced specialist reparation lawyers acting on behalf of insurance companies and local |
| government. Their needs were rarely met by procedural provisions to identify and clarify the matters in dispute. The practice by defenders of making 'standard defences' at the bar and the organisaition and volume of court business were not conducive to the clarification of disputed issues. This was especially problematic for unassisted litigants where issues of liability and quantum were raised. The research found many unassisted litigants who grudgingly dropped their case or accepted what they believed to be a derisory offer as a result of their court experience. |
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| The Full Hearing |
| Unassisted litigants were successful only under rare circumstances. Small claims procedure gave them no exemption from their ignorance of the law of delict, no assistance with their preparations for a proof hearing and no relief from the requirement to move quickly between cross-examining and being cross-examined. These difficulties were compounded by the fact that they usually faced experienced reparation lawyers. Sheriffs were more reluctant to take an interventionist role where one party was legally represented, as it usually was in personal injury actions. Lawyers acting on behalf of both pursuers and defenders reported serious difficulties in preparing for and conducting personal injury proofs under small claims procedure. |
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| Discussion |
| The appropriateness of including personal injury actions within the remit of small claims procedure hinges upon the capacity of victims to pursue low value personal injury claims without legal representation, and to do so with some degree of success. This, in turn, depends upon the substantive law involved, the litigation skills required and the role played by the court in proceedings. Small personal injury claims are likely to be as complex as higher value actions, partly because the value of a personal injury claim is 'at a distance' from the negligent acts or damaging consequences on which the claim is made. There are crucial nuances to personal injury law and litigation skills are required, particularly when claimants face reparations specialists. Where court proceedings are conducted according to the normative expectations of an adversarial system, the justice to which unassisted personal injury litigants have access under small claims procedure may be perceived as hollow. Because these features are normally present, personal injury actions do not easily 'fit' into small claims procedure. |
| The appropriateness of including all low value personal injury claims within small claims procedure also presumes that all personal injury victims are risk averse. This does not appear to be the case, particularly for members of legal insurance schemes and trade unions. Indeed, small claims procedure was found to impede out of court settlement amongst these groups. |
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| Conclusion |
| Personal injury actions may not be the most difficult class of actions which reach the small claims court. |
| The impact of small claims procedure on personal injury claims is significant, however, because it is felt at all stages in the life history of a personal injury claim. While small claims procedure may have extended access to justice by removing the financial risks of litigation, access to justice has been reduced by restricting access to advice, negotiation and prelitigation assistance. This may be a more crucial component of 'access to justice' than the opportunity to litigate. It is suggested that personal injury claimants be offered an 'option of forum'. This would conform more closely to the consumer interests by which small claims procedure was originally driven, extend flexibility into the system, and promote access to justice at all stages in the life of a personal injury claim. |
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| About the study |
| This study was commissioned in 1994 by The Scottish Office Legal Studies Research Group on behalf of Scottish Courts Administration to examine the impact on and appropriateness of small claims procedure for personal injury actions. The research was undertaken by Elaine Samuel and follows from a programme of research to monitor the implementation of small claims procedure in Scotland soon after the legislation came into force. Together with studies on personal injury litigation in court business 4 and the funding of personal injury litigation, 5 this study is also part of a research programme commissioned by The Scottish Office Legal Studies Research Group to examine personal injury litigation in Scotland. |
| The study was conducted between January 1994 and March 1995. 90 interviews were conducted with claimants and litigants, lay and legal advisers, defenders, sheriffs and other interested parties such as representatives of consumer groups, sheriff clerks and academics. 20 cases were chosen for intensive investigation and over 40 interviews were conducted around these 20 cases to provide the perspective of several parties to the action. 29 court proceedings of personal injury actions under small claims procedure were observed in five sheriff courts, including seven at full hearing (proof). |
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1Law Reform (Miscellaneous Provisions) (Scotland) Act, 1985.
2. The Lord Advocate Consultation Paper: Small Claims Procedure in the Sheriff Court - Detailed Proposals, Edinburgh: Scottish Courts Administration, 1987.
3. Jones, H. et.al. Small Claims in the Sheriff Court in Scotland, Central Research unit, The Scottish Office, 1991.
4 Cameron, G. and Johnson, R. Personal Injury Litigation in the Scottish Courts: A Descriptive Analysis, The Scottish Office, 1995.
5 Blackie, JM., Paterson, A. & Squires, T. Funding Issues in Personal Injury Litigation, Central Research Unit Research Papers, 1998 |
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| " In the Shadow of the Small Claims Court: The Impact of Small Claims Procedure on Personal Injury Litigants and Litigation", the research report summarised in this Research Findings, may be purchased (price £5 per copy). |
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