Small Claims, Large Disputes

Frederick Wilmot-Smith

In his Commentaries on the Laws of England, William Blackstone said that there is a right ‘of applying to the courts of justice for redress of injuries’. This is necessary to ensure that individuals’ rights do not become a ‘dead letter’. Blackstone did not say that the right carried with it an entitlement that the courts would consider the parties’ claims at a hearing: that went without saying.

On 1 June, people with claims alleged to be worth up to £10,000 were stripped of that right. Their entitlement to a public hearing depends on ‘judicial discretion’: if a judge decides the dispute is ‘suitable for determination without a hearing’, the parties won’t get one – even if they both want to be heard. The new procedure applies in six courts nationwide as part of a ‘pilot period’ that lasts until 2024.

This will affect the outcomes of cases. One study of 1.7 million social security appeals found that 48 per cent of appeals with an oral hearing were allowed; when the cases were decided on paper that number fell to 15 per cent. The impact will be especially hard on those unable to afford representation. Litigants in person are notoriously bad at handling their own cases; oral hearings can be vital in allowing a judge to clarify what is at issue.

In a recent speech on the ‘Future of Dispute Resolution’, Sir Geoffrey Vos, the senior civil judge in the country, distinguished ‘small claims’, where the parties are said to want a swift resolution ‘without caring whether the outcome is robust and dependable’, from ‘large disputes’, where ‘the parties may be prepared to invest time and money in achieving a more just and perhaps objectively correct solution.’ He cited no evidence. Together with Lord Wolfson (a former parliamentary under-secretary of state for justice, who resigned in protest at the prime minister’s attitude to the rule of law), Vos signed the document that set the pilot scheme up.

The reform assumes that a claim is less valuable because the sums in dispute are smaller. But while £10,000 may seem a small amount to some (newly qualified solicitors can earn £125,000 a year), it is life-changing for others: the standard allowance of an individual on universal credit is between £265.31 and £334.91 a month. As the US Supreme Court justice Thurgood Marshall once wrote, ‘the principles which would have governed with $10,000 at stake should also govern when thousands have become billions. That is the essence of equal justice under law.’


  • 6 July 2022 at 11:53am
    Martin Davis says:
    Depressing. Should be read in conjunction with Ferdinand Mount's recent article in the Paper - Indecent Government. I would like to believe electing a Labour government would make a difference. But perhaps I should really hope for a hung Parliament.

  • 6 July 2022 at 6:32pm
    Gary Cornwell says:
    Is it true. Can we really hang them?

    • 10 July 2022 at 11:40am
      OldScrounger says: @ Gary Cornwell
      Cast your mind back to the scene in "Blazing Saddles" where Sheriff Bart encounters his former workmates on the rail-building gang.

      "Bart! They said you was hung!"
      "They was right."

      Some got the joke. Some didn't, especially, I suspect, in British auditoria.

  • 10 July 2022 at 11:59am
    OldScrounger says:
    Having (successfully) gone through the process of appealing to a Tribunal against a demand by HMRC for repayment of Tax Credits, I doubt I would have succeeded without the higly professional -- and free -- assistance afforded by the Welfare Rights team at Perth and Kinross Council, whose very existence had to be drawn to my attention by Perth Citizens' Advice Bureau. I wonder how many victims of bureaucratic mismanagement have been instantly plunged into impotent despair and unwarranted suffering because they don't know that help is available.