Small Claims Paper Determination Pilot – the way forward for Courts of the future?

Today (1st June 2022) marks the launch of Practice Direction 51ZC, otherwise known as the ‘Small Claims Paper Determination Pilot’.

The Pilot allows for some small claims (claims under £10,000) to be decided without need for a hearing or any oral submissions whatsoever, even if the parties do not agree to paper determination as CPR 27.10 currently requires. The Pilot is being launched in a small number of Pilot County Courts: Bedford, Luton, Guildford, Staines, Cardiff and Manchester. Any small claims which are issued in these County Courts after today will be subject to the Pilot.

The small claims Directions Questionnaire will be updated to include a section where litigants can indicate whether the matter is suited to determination by paper and, if not, why not. The Pilot Court can then decide to determine the claim without a hearing if either:

(a) All parties have agreed to determination by paper on their Directions Questionnaire; or

(b) The Court considers the claim to be suitable for determination without a hearing in accordance with the Overriding Objective, regardless of whether the parties have agreed to paper determination on their Directions Questionnaire or not.

This is a significant and interesting change to the CPR as we know it, which currently requires agreement from all parties before a claim can be determined on paper pursuant to CPR 27.10. We see the Courts taking larger case management powers, perhaps marking an alteration in the approach to litigation going forward. This change is no doubt influenced by the current political and global climate; the current backlog of cases which all Courts are facing post-Covid has made the need to decide matters in the most proportionate and efficient manner even more pressing.

The Practice Direction does not purport to be appropriate for all small claims and suggests that the most suitable cases for determination on paper under the Pilot are to include:

(a) A claim for compensation for flight delay or denial of boarding pursuant to EU Regulation 261/2004 and/or The Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment)(EU Exit) Regulations 2019;

(b) A claim arising out of the issuance of a parking ticket on private land;

(c) Any other claim of £1000 or less by value where there is no significant factual dispute which requires oral evidence, and the issues are not of such complexity as to require oral advocacy.

It will be interesting to see how the Pilot scheme works in practice and how widely it will be implemented. The need for streamlining the small claims track and freeing up judicial resource is important and is a noble aim. However, it must be done in a way which ensures that litigants still feel that ‘justice has been done’. For many litigants, especially those representing themselves, the sums claimed in the small claims track are significant, and the issues contested are important and emotive. Many may want the opportunity to put their claim across in person and ‘have their day in court’; taking away this opportunity may result in more dissatisfied litigants, and therefore more appeals, which undermines any efficiency gains of the Pilot. It is therefore a difficult, and important, balancing act for the Court to ensure that justice is seen to be done, whilst dealing with claims more efficiently and at proportionate cost.

Litigants can object to having their claim determined on paper where the Court has given such directions without their agreement. They must make a written submission setting out their objection, and the Judge will consider this at the listed date of determination. The Judge will then decide whether to continue with the paper determination or whether to list the matter for a hearing. Again, it will be interesting to see the judicial approach to this element of the Pilot: how many such submissions will be successful, and on what grounds?

Judges who do make paper determinations under the Pilot will be required to prepare a note of reasons which will set out how they came to their decision. This may have interesting implications for the small claims track as a whole, where judgments are of course not routinely transcribed or recorded. Increased transparency as to judicial reasoning is a good thing and it will be interesting to see how this plays out in practice.

The Pilot will run for two years and will then be evaluated. The evaluation report is worth ‘keeping an eye out’ for as it will no doubt shed light on the direction which the small claims track, and perhaps litigation in general, is heading.

In the meantime, should you require any further information in relation to the above, please contact our Commercial Dispute Resolution team who will be happy to advise.