Evaluation

Problems have become evident in the operation of the arbitration procedure, particularly in cases where one party has been represented whilst the other has not. In spite of the clear intention to facilitate the resolution of disputes cheaply and without the need for legal practitioners, some individuals, particularly large business enterprises, insisted on their right to legal representation. As legal assistance, formerly known as legal aid, is not available in respect of such actions, most individuals cannot afford to be legally represented and, therefore, find themselves at a distinct disadvantage when opposed by professional lawyers.

            One solution to this difficulty would have been to make legal assistance available in the case of arbitration. Such a proposal is very unlikely ever to come to fruition, mainly on economic grounds, but also on the ground that the use of professional lawyers in such cases would contradict the spirit and the whole purpose of the procedure.

            Alternatively, it might have been provided that no party could be legallyrepresented in arbitration procedures, but to introduce such a measure would   have been a denial of an important civil right.

The actual method chosen to deal with the problem was to lift the restrictions on the rights of audience in small debt proceedings. Parties to the proceedings were entitled to be accompanied by a McKenzie friend to give them advice, but such people had no right of audience and, thus, had no right actually to represent their friend in any arbitration In October 1992, under the Courts and Legal Services Act 1990, the Lord Chancellor extended the right of audience to lay representatives in small claims courts. This decision has the effect of allowing individuals access to non-professional, but expert, advice and advocacy. Members of such organisations as citizens advice bureaux and legal advice centres will now be permitted to represent their clients, although they will still not be permitted to issue proceedings. In cases involving claims of more than £1,000, they may even charge a fee.

            The increase in the maximum amount to be claimed to £5,000 introduces two particular difficulties with regard to representation. The first, and by far the more serious, is the fact that the raising of the ceiling to what is a not inconsiderable sum of money means that individuals will lose legal aid to fund their claims in such cases and, therefore, may not have access to the best possible legal advice with respect to their case. The second, and apparently contradictory, point is that the number of lawyers appearing in small claims proceedings may actually increase as a result of the rise in the limit. Whereas it might not be worth paying for legal representation in a £3,000 claim, it might make more economic sense to pay for professional help if the sum being claimed is much higher. Which alternative actually occurs remains to be seen.

            In evaluating the small claims procedure, regard has to be had to the Civil Justice Review of 1996, which specifically considered the arbitration procedure and concluded that it generally works in a satisfactory way to produce a relatively quick, cheap and informal mechanism for resolving many smaller cases without the need to overburden the county courts.