AN EXPERIMENT IN INFORMAL JUSTICE: THE SMALL CLAIMS TRIBUNAL OF SINGAPORE
| Date | 01 December 1991 |
| Published date | 01 December 1991 |
| Author | LOUIS D’SOUZA |
| Citation | (1991) 3 SAcLJ 264 |
Formal justice is often expensive, time consuming and subject to technicalities. Costs are prohibitive and can well exceed any amount which the successful litigant can recover. This is especially acute when the claims are small.
The procedural technicalities and the high costs of litigation led to several reforms to make the courts more accessible to the man in the street. Alternatives to the adjudication model (which was perceived to be the cause of the problem) for settling a claim, more particularly, principles of conciliation and arbitration were actively explored. The idea was to develop a simplified and uncomplicated way of litigating a claim. There would be a minimum of formalities, delays and expense. Litigants could do their cases themselves and be assured of a judgment according to law.
The “informal justice” movement advocated the removal of intervention of legal professionals and sought to shift management of disputes away from agencies of state and into the hands of the parties. The concept that led to the creation of small claims courts was the idea of a court assisted conciliation prior to the adjudication of the dispute. Under this concept, the litigant resorted first to an informal conciliation process staffed by court officials. If conciliation was unsuccessful, then the litigant proceeded to the formal court process. A tribunal incorporating all these principles was created for this purpose which was to be part of or closely linked to the regular court system and staffed by qualified judges.1
The manifest goals of this movement are: “to provide a speedy, inexpensive and simple justice in contract and tort cases which involve small amounts of money”. Some of its proponents see the potential of the small claims court idea as a “theoretical starting point upon which to build a more effective model for civil litigation, a model in which arbitration and conciliation play a central role”.2 Others see these courts as a means to make civil justice accessible to the poor.
In particular, its supporters advocate the use of the small claims concept as the only and the most appropriate way of resolving the following:
(i) cases where the amount claimed is so small that it is simply not worth using the courts to adjudicate the claim in view of the costs involved.
(ii) disputes where one of the parties is so poor that he is unable to finance a litigation.
(iii) reform of the adversarial system of adjudication which was found to be unsuitable for dealing with small cases.
Though the theoretical basis of the concept appeared attractive the execution of the concept proved more difficult.
At this stage, it would be useful to comment on the operations of the small claims courts for though there were diverse small claims courts existing all over the world3, certain features of the courts were noteworthy and generally characteristic of the small claims courts.
Small claims courts are either part of the established judicial system and exist as a separate (and often a subordinate) part of the existing courts and staffed by regular court staff or they are separate tribunals with separate registries and staff. The Small Claims Tribunals of Hong Kong, United Kingdom and New Zealand are examples of the former. In Australia, both systems are in operation. In Queensland, New South Wales, Victoria and Western Australia, separate tribunals with their own registries and staff deal with small claims. However, in South Australia, Australian Capital Territory and Northern Territory, small claims are handled by the existing courts though simplified procedures are used.
These two models are a reflection of the insoluble dilemma faced by the small claims movement. There are some who favoured the idea of the small claims court being a modification of the existing adjudicatory model and complementing it while others want to be free from the established judiciary and want the court to be a genuine alternative to the adversarial process.
The notable point is that whether they are independent tribunals or part of the regular courts, these courts are staffed by qualified judges.
As the name suggests these courts are concerned with claims of small value and therefore invariably all the small claims tribunals imposed a maximum monetary limit to claims that may be brought before them: In Hong Kong, for example, the claim cannot exceed HK$3000.
Further, depending on the underlying philosophy of the tribunals, there could be further limitations. If, as is the case with most of the tribunals, they are intended to deal solely with consumer claims, the dispute must have to be one which arises out of a contract or quasi-contract. For example, the Australian small claims tribunals will only hear claims by a trader or a consumer arising out of a contract for the supply of goods or the provision of services.
If, however, the tribunal was intended to be a process handling all small claims, then no limitation would be imposed except that of the monetary limit. Take the case of the small claims process in the United Kingdom which exists within the structure of the County Courts. Any claim involving £500 or less is referred automatically for arbitration. There are no restrictions here as to the status of the parties or the causes of action.
The small claims process strives for simplicity. In most jurisdictions, there were no rigid and complex rules governing the procedures of the courts. “Only the general outlines of procedure were specified and the details were left to the discretion of the judge. In particular, judges were not to be bound by formal rules of evidence, though a decision were to be reached on the basis of substantive law.”4 The classic example of this is found in section 12 (4) of the Singapore Small Claims Tribunals Act5 which provides:
A tribunal shall determine the dispute according to the substantial merits and justice of the case and in doing so shall have regard to the law but shall not be bound to give effect to strict legal forms or technicalities.
In some small claims courts, there was an additional requirement in that the claim had to be simple — that is a dispute where there are no complex issues of law or facts involved. The rationale for this is that such cases are inappropriate for the small claims process as they are time consuming or be
best left to the regular courts where the judge could resolve the matter with the assistance of professionals.
All small claims courts promote conciliation of the claims. This means that adjudication is viewed as a last resort. The litigants will be given a chance to settle the matter amicably, if this is possible. The court actively promoted settlement or mediated in the dispute to enable the parties to come to an agreed settlement. Take the example of the Small Claims Tribunals Act of New Zealand, which declares that “the primary function of the tribunal is to attempt to bring the parties to a dispute to an agreed settlement”6 In a few small claims courts, conciliation was an alternative to adjudication. In the United Kingdom for instance, though claims of £500 are automatically referred for arbitration, the Registrar could on the application of the parties rescind the referral.
The question of legal representation in small claims courts is by far the most controversial issue. There are those who argue the presence of lawyers would create an atmosphere of unwarranted formality and bring more complexity at the hearing. Others argue that their presence is necessary to balance the inequality that arises when the other side is a corporate party or a “repeat player”. It is not surprising therefore there is a wide divergence of practice amongst the various small claims tribunals on the question of legal representation. This is best reflected in the United States where some states expressly prohibit them while others actively encourage them. Some States passively encourage their employment while others discourage them by placing limitations like imposing low mandatory fees that could be charged or even prohibiting the recovery of attorney’s fees. As a compromise, in some States, legal representation is possible only if the small claims judge permit it or for any specific purpose.
Though small claims courts adopt the adversary model of litigation, the judge is required to adopt an inquisitorial role and take an active part in eliciting facts and evidence pertaining to the claim. Also, the court took great pains to appear less formidable and overpowering: for example, they are called tribunals instead of courts.
Further, in marked contrast to regular courts, small claims courts hear
claims in private. The rationale for this is that a public hearing may be an intimidating and inhibitive factor for the parties.
Thus it can be seen from this survey that the small different claims courts are a rather type process for the resolution of disputes. This has to be borne in mind when dealing with the Singapore Small Claims process.
After eight years of lobbying,7 the Consumer Association of Singapore (CASE) managed to persuade the government of Singapore in 1984 to enact the Small Claims Tribunals Act which created for the first time an informal dispute settlement machinery for small civil claims.
CASE is a non-profit non-governmental organization founded in 1971 with the basic objective of protecting, informing and educating consumers. One of the more important roles of CASE is the conciliation of consumer-trader grievances. However, CASE felt powerless when dealing with a “hard core of consumer grievances in which agreement between the trader and purchaser will not be possible”.8 The main...
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