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A while ago, I wrote a piece on the (then) proposed updates to the Civil Procedure Rules. Despite a few typos, on reading it again, I seem to have been quite accurate in my assessment.

The small claims limit did go up but only to £10,000.  As I noted in a blog post, there is some indication that District Judges are feeling the pressure of having to deal with two opposing litigants in person who have arrived with little understanding of what the court needs to understand and deal with the case.  It is also proving itself to be a potential rogue's charter with a number of people to whom I have written letters of claim taking the approach that the sums in question are too small to make them worth litigating.

We are already reaching a stage at which litigation is the rich client's preserve.  Unless the client is wiling to put some money into the claim in the knowledge that it is not going to be recoverable as costs whether the case succeeds or not, the case is either not going to be run or, in the majority of cases, is going to be run badly.

Unless the powers that be are prepared to commit to a very expensive u turn (and this is not something from which our present Government seems to have have shied away!) we appear to be stuck with it but here is another idea.

The practice direction on pre-action conduct already allows a number of sanctions against claimants who do not follow it including costs.  How about this?

We could try expanding it in the next set of changes to the CPR to make it obligatory for the court to:

1.  Award costs on an indemnity basis against those who fail to follow the practice direction requirements and lose at trial.

2.  Do likewise against claimants who do enter into the spirit of the practice direction and, despite having the defendant's case set out in full in   the response (with an explanation of the legal principles and case law) proceed with the claim and lose on the basis set out in the response.

3.  Do likewise against defendants who have the case set out in full with legal principles and case law in the letter before claim and, despite the content, refuse to give in and put the claimant to the expense of issuing.

It will initially involve the parties in more work in making sure that they both comply with the practice direction's requirements and actually take the time to read the letters that they receive and to consider their responses but if the case is going to be pleaded in correspondence, why not give the correspondence the status of pleadings and attach more significant costs consequences to it?

My complaint about the small claims track costs regime has always been that the value of the claim has nothing to do with the complexity of the legal issues.  It is not fair to make people go to court unrepresented with a case involving difficult issues and it is not fair to put the Judges under the strains that inevitably follow from trying to deal with a case in which they are the only ones who understand what the issues are and how they should be resolved.

If a litigant takes the time and trouble to find out what the law is (and I do not mean by way of a search on Wikipedia and Google) why should he not be rewarded for trying to save the Court's time?

It is a plan which is only in the very early stages of development but it might be workable.  I would be interested in comments if anyone wants to take the time to email me.