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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. •