The Gazette 1982

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. 76 No. 3 April 1982 Small Claims — No Easy Answer

F URTHER voices have been raised recently calling for the introduction of Small Claims Courts in Ireland. Small Claims Courts, by that name, grew up in the United States as part of their general court system. They vary in format from State to State — some even permitting debt collection agencies to use their procedures. Originally intended to deal with claims for small debts they have expand- ed their activities, some now including arbitration procedures, others incorporating enforcement pro- cedures while still others provide assistance to litigants in presenting or defending claims. They do not, however, provide a coherent model which can readily be adopted elsewhere. In arguing for the introduction of small claim courts, much stress has been placed on the difficul- ties and expense which face people who wish to litigate claims for modest sums of money. The need for some new system is often attributed to the reluct- ance of lawyers to undertake the kind of work involved, suggestions are made that if only a system without lawyer-advocates or lawyer-judges could be established all would be well. Doubts have been expressed here as to whether any courts could legitimately be established outside those provided for by the Constitution. There may also be a constitutional difficulty in preventing liti- gants from engaging the services of lawyers. In passing, it has to be said that some of the provisions of recent consumer legislation are not easy of inter- pretation, even by lawyers. Not all plaintiffs or defendants will be able to mount their cases without at least the assistance of a person with legal training, whether such person appears as advocate or not. If a system is established which banishes lawyers from acting as advocates it is hard to see how such a court could operate on the adversary system which is our norm. In order that justice be done it would seem inevitable that the judge would have to act as an inquisitor and not merely as an umpire. Persons appointed to act as judges in such Courts may need not merely some additional training to fit them for

their unusual task but also be provided with assist- ance to enable the Court itself to adduce evidence. If such Courts are to be concerned with claims over a debt, or landlord and tenant claims, itjnay be relatively easy to ensure that all the evidence is available to the tribunal. However if the subject matter of the dispute is, as appears increasingly likely to be the case, a claim by a dissatisfied consumer about the quality of goods or services provided to him, the immediate difficulty which arises is that of producing the expert evidence to support such claim. If each party is to be required to produce his own evidence the cost of production of the evidence will soon exceed the amount in dispute. If the Court is to commission an independent report, unless it be provided by a State-sponsored body and either free from cost or at a nominal cost, the expense may still be out of proportion to the amount involved. Whether it is the duty of the State to provide such a subsidised service for consumers is questionable. Equally ques- tionable is whether the litigation of one consumer claim at a cost in excess of the value of the product or services provided, achieves a great deal for the rest of consumers, who may through a State subsidy have largely paid for the exercise. It is significant that in the United States where the Small Claims Courts have historically had their greatest success, the newer arbitration schemes for consumer claims operated by the American Arbitra- tion Association in association with Better Business Bureaus are now functioning in over 100 cities. These schemes should be studied as should the proposals of the United Kingdom Director of Fair Trading, for conciliation and arbitration schemes, supported or provided by trade associations in co- operation with the Chartered Institute of Arbitrators. Passing the responsibility back to trade or profes- sional associations, with lay involvement, may well provide a better and cheaper answer to the problem than the establishment of further courts whose pro- cedures might require further state subvention. •