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Civil Liability Bill could create court chaos as employer liability cases clog up the small claims system

Date: 19 October 2018 Shopworkers’ trade union Usdaw is warning ministers that their proposals to force more injured workers through the small claims court could result in overwhelming the system as more claimants will apply for their cases to be reallocated due to the complexity of the issues involved.
The Government is proposing to force more injured workers through the small claims court by doubling the threshold to £2,000 in measures linked to the Civil Liability Bill. They have rejected a reasonable and fair compromise of raising the threshold to £1,500, which is backed the independent cross-party Justice Select Committee.

In the debate on the Civil Liability Bill Lord Keen, spokesperson for the Ministry of Justice, told the House of Lords, “Where a case is considered to be of a degree of complexity such that it would not lend itself to the small claims track, clearly the court can direct that it should go on to the fast track.”

Paddy Lillis – Usdaw General Secretary says: “The small claims court is designed to settle relatively straightforward disputes like poor service, faulty products and landlord repair. The problem with most employer liability cases is that they often involve complex legal arguments or multiple defendants; which the small claims courts were just simply not designed to deal with. Our fear is that the courts will be clogged up with cases where the claimant applies for the case to be reallocated.

“Under the Government’s proposals, we would be obliged to follow Lord Keen’s guidance and instruct our solicitors to make applications to reallocate any complex cases sent to the small claims court just because the value is less than £2000. An unforeseen consequence of the reforms would be that the already overstretched court system is inundated with applications on such cases, as well as having to cope with a significant increase in litigants in person.

“A much fairer inflationary based rise to £1,500 would capture considerably fewer cases, the issue of allocation would be less contentious and the burden on the court system significantly reduced. The simple solution to this problem is to either treat employer and public liability cases in the same way as vulnerable road users or limit the increase in the small claims to £1,500.

“We have real concerns about the impact of the Government’s proposals on injured workers being unrepresented in the small claims court because the costs cannot be recovered from negligent employers. However, we are not convinced that the Government has thought through the implications for the small claims courts and this issue needs to be addressed when the Civil Liability Bill is debated next Tuesday in the House of Commons.”

The Civil Procedure Rules 2018 state in CPR 26.8 that one of the factors in determining the appropriate track for a claim is ‘the likely complexity of the facts, law or evidence’. CPR 26.10 confirms that the court may subsequently reallocate a claim to a different track than that to which it was originally allocated.

Usdaw has consistently argued that the vast majority of all employers’ liability cases and a significant proportion of public liability cases involve complex issues of fact, law or evidence and on this basis alone the small claims track is an inappropriate forum for such cases. Employer’s liability cases frequently involve allegations concerning the breach of statute or workplace regulations. Public liability claims for slipping and tripping under the Highways Act 1980 and dog bite cases under the Animals Act 1971 frequently involve complex issues of law and evidence.

Notes for editors:
Usdaw (Union of Shop, Distributive and Allied Workers) is the UK's fifth biggest and the fastest growing trade union with over 435,000 members. Membership has increased by more than 28% over the decade. Most Usdaw members work in the retail sector, but the union also has many members in transport, distribution, food manufacturing, chemicals and other trades.
For Usdaw press releases visit: http://www.usdaw.org.uk/news and you can follow us on Twitter @UsdawUnion

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