JUS­TICE FOR LIT­TLE PEO­PLE

Goods not de­liv­ered? Dodgy builder? The small claims ‘court’ has been get­ting jus­tice for con­sumers for 25 years but its im­pact on small busi­nesses is more nu­anced

The Irish Times - Weekend Review - - NEWS REVIEW - Myles Mc­Cormick

Eddy-France Le­bamba got mar­ried in May 2017. Through her wed­ding plan­ner, she hired Toms Kaluf ando to film t he event. Ten months later, she had not re­ceived the footage she had paid for.

A small claims hear­ing be­fore the Dublin District Court on March 5th heard that Le­bamba had paid Kal­u­fando ¤650 for his ser­vices but he had be­come un­con­tactable fol­low­ing the event, and had de­nied her ac­cess to the unedited ma­te­rial.

Mean­while, footage of the event had been used in his so­cial me­dia pro­mo­tions. When she asked for a re­fund, it was not forth­com­ing.

“Just be­cause you are in an artis­tic game doesn’t mean you are any dif­fer­ent from other ser­vice providers,” Judge Michael Cogh­lan told Kal­u­fando.

“This is a fairly sim­ple case,” the judge con­cluded. “There was a sim­ple con­tract for ser­vices. Pay­ment of money for the tak­ing of a video and the hand­ing over of that video.

“You’re very lucky, sir, you are not in big­ger trou­ble,” he said, cit­ing the unau­tho­rised use of the wed­ding footage on so­cial me­dia.

Eddy-France Le­bamba got her ¤650 re­funded, and Kalu­fundo was di­rected to hand over the orig­i­nal footage of the wed­ding.

A sep­a­rate small claims case that day sought a re­fund for the early wind-up of a ten­ancy agree­ment. Naomi Mure­san and Oana Cio­can had been rent­ing a room in Va­lerie Prade­les’s prop­erty and were asked to leave in April 2017.

Dis­agree­ments over util­i­ties and the use of shared space had led to ten­sions and ul­ti­mately the break­down of the ten­ancy. Mure­san and Cio­can left the premises be­fore the ex­piry of the no­tice pe­riod.

They filed a claim for the re­turn of their se­cu­rity de­posit, a re­fund of half a month’s rent and com­pen­sa­tion for the in­stal­la­tion of Ro­ma­nian tele­vi­sion chan­nels.

Prade­les said the claimants’ keys to the prop­erty had not been re­turned and coun­ter­claimed for the cost of a lock­smith to change the locks.

“The fact that [ the claimants] chose to leave, al­beit un­der some pres­sure, didn’t mean that it was forced upon them,” the judge ruled, not­ing the ten­ancy agree­ment was “far too in­for­mal”.

He or­dered a pay­ment of ¤794 for the re­turn of the se­cu­rity de­posit plus 11 days’ rent. The judge dis­carded the tele­vi­sion in­stal­la­tion claim and the coun­ter­claim for lock­smith costs, on the ba­sis it had been done be­fore the agreed de­par­ture date.

He also di­rected that the keys be re­turned.

Af­ford­able mech­a­nism

Es­tab­lished in 1993 as an af­ford­able mech­a­nism for con­sumers to have their rights en­forced in matters of small mone­tary value, Ire­land’s small claims pro­ce­dure ( or small claims court) will mark a quar­ter cen­tury in ex­is­tence this year.

“Pri­mar­ily, the court pro­vides an av­enue for cit­i­zens to pur­sue small claims that in the or­di­nary course of events wouldn’t jus­tify the en­gage­ment of a so­lic­i­tor,” says Tom Ward, former chief clerk of the Dublin Cir­cuit and District Courts.

At the heart of the pro­ce­dure is the lack of a re­quire­ment for le­gal rep­re­sen­ta­tion, and the as­so­ci­ated costs. Its in­tro­duc­tion was a move to en­hance the stand­ing of con- sumers in sit­u­a­tions where griev­ances would other­wise be set aside due to ex­pense, time and gen­eral in­con­ve­nience of go­ing to court.

Lob­by­ing by the Con­sumers’ As­so­ci­a­tion of Ire­land led to the launch of a pi­lot pro­gramme in four locations across the coun­try in 1991.The pi­lot was deemed a suc­cess, lead­ing to the of­fi­cial launch of the small claims pro­ce­dure in late 1993.

“There was a stronger re­ac­tion than there might be now. The pub­lic was very en­gaged be­cause they had very few chan­nels they could en­gage on con­sumer is­sues,” says Der­mott Jewell, pol­icy and coun­cil ad­viser with the con­sumer body.

“There was very l i t t l e con­sumer pro­tec­tion at the time. There was no ac­cess to re­me­di­a­tion that was af­ford­able. You took a case at your own ex­pense and suf­fered the con­se­quences if you didn’t win,” he adds.

The pro­ce­dure is run out of District Court of­fices across the state. For ¤ 25, claims can be filed ei­ther on­line or in the lo­cal District Court of­fice for a max­i­mum value of ¤2,000 – al­though there is a push to in­crease this cap.

A small claims reg­is­trar – the District Court clerk – pro­cesses claims and where pos­si­ble, looks to me­di­ate a set­tle­ment with­out the need for a court hear­ing. Where this is not pos­si­ble the reg­is­trar sends the case for a hear­ing be­fore the District Court.

Claims can be made re­lat­ing to goods or ser­vices bought for pri­vate or busi­ness use, mi­nor dam­age to prop­erty and the non-re­turn of a rental de­posit. In the main they tend to re­late to house­hold and elec­tri­cal goods. Build­ing ser­vices, cars and pack­age hol­i­days also ac­count for sig­nif­i­cant pro­por­tions.

The court has proved ef­fec­tive as a con­sumer tool.

“The mere ex­is­tence of the small claims fa­cil­ity has fa­cil­i­tated an en­vi­ron­ment among busi­nesses that if they don’t pay at­ten­tion to what con­sumers want there is an ef­fect,” says Ward. “It sup­ports an en­vi­ron­ment where busi­ness have to up their game and en­sure a proper in-house sys­tem for deal­ing with con­sumers who are not happy.”

Most claims made do not end up in court. A large num­ber are dis­missed for not be­ing within the re­mit of the small claims pro­ce­dure. And a sig­nif­i­cant pro­por­tion of valid claims are ul­ti­mately set­tled by the reg­is­trar.

“It’s not a case of im­me­di­ately putting it be­fore the courts. Putting it im­me­di­ately be­fore the court is not nec­es­sar­ily in the in­ter­est of the ci­ti­zen or the goods and ser­vices provider,” says Ward.

Of 1,567 valid claims made un­der the do­mes­tic small claims pro­ce­dure in 2016 – the lat­est data avail­able – 36 per cent were set­tled by the reg­is­trar, with 40 per cent given a court date. The re­main­der were ei­ther not pro­ceeded with or given de­crees by de­fault.

Ease of ac­cess for any­one look­ing to make a claim is a cen­tral el­e­ment of the process, and claims have be­come sig­nif­i­cantly more ac­ces­si­ble in re­cent years. An on­line fa­cil­ity to make claims was in­tro­duced in late 2006, cre­at­ing a 25 per cent spike in ap­pli­ca­tions in 2007.

“The on­line sys­tem cer­tainly makes it eas­ier for peo­ple to make ap­pli­ca­tions. Pre­vi­ously you would have rung up or come into the of­fice to fill out a form. You would have had a chance to speak to somebody be­fore fill­ing out the ap­pli­ca­tion. That might ac­count for part of the in­crease,” says Ward.

In­el­i­gi­ble claims have also risen. Just over 1,000 claims in 2016 were deemed out­side the scope of the pro­ce­dure.

Small busi­ness own­ers have com­plained that the ease of ac­cess leaves the door open for some con­sumers to bring less valid claims, while a day in court for a busi­ness can carry in­di­rect costs.

Ronan O’Brien, en­trepreneur and founder of Za­tori Re­sults Ltd, was re­spon­dent to a case in Port­laoise in February re­gard­ing the re­turn of elec­tri­cal goods. While he won the case, the time in­volved in pre­par­ing for the case and at­tend­ing court with an employee cost the busi­ness sig­nif­i­cantly, he says.

O’Brien says the sys­tem could be more ef­fi­cient.

One is­sue he iden­ti­fies is that a case might not be dealt with un­til 4pm “but you have to sit around in court all day”. “If a den­tist can give you an ap­point­ment there is re­ally no rea­son ev­ery­one has to be in at 10am,” he says.

‘Wastage’

“What about if we had a text mes­sag­ing sys­tem where peo­ple could say in ad­vance if they were go­ing to show up. Or if there was a cafe around the cor­ner where you could let peo­ple go and do some work un­til their case is called. There’s just a lot of wastage there.”

But the call- over sys­tem of de­cid­ing time slots the morn­ing of the case re­mains the most ef­fi­cient pos­si­ble for now, ac­cord­ing to the courts ser­vice.

“Busi­nesses have to weigh up the cost of their time. If somebody de­cides to con­test that is their pre­rog­a­tive,” says Ward. “We would like to as­sign par­tic­u­lar slots, but in re­al­ity un­til we have the call- over at the start of the day, we have no idea what cases have been set­tled and which have to go to a

Small claims limit Time to raise the max­i­mum value?

full hear­ing.”

“It’s a bit like what the air­lines do with seats. We have quite a few over in case of no shows,” he adds. “If ev­ery­one keeps the court in the loop, I don’t think there is a bet­ter sys­tem.”

An un­der­used mech­a­nism is a cross-border claim. The Euro­pean small claims pro­ce­dure, a Europe-wide equiv­a­lent scheme, ar­rived in Ire­land in 2008 and al­lows con­sumers to take cases against par­ties in other EU states, with the case ruled upon in the con­sumer’s home coun­try, and en­forced abroad. Claims can be for val­ues up to ¤5,000.

It was used quite a bit dur­ing the Ice­landic vol­canic ash cloud in 2010, when claims against Ir­ish air­lines spiked fol­low­ing the ground­ing of air­craft. But use – and knowl­edge – of this scheme in Ire­land re­mains low.

While the num­ber of EU small claims cases filed in Ire­land has since in­creased some­what, their level re­mains low: 175 such cases were dealt with by the court in 2016, and 129 in 2015.

Since 2010, busi­nesses can also avail of the process to make claims – though few do. “The per­cep­tion is that it’s solely a busi­ness- to- con­sumer tool,” says Sven Spollen- Behrens, di­rec­tor of the Small Firms As­so­ci­a­tion.

“Where it could ben­e­fit small busi­ness is with pay­ment cul­ture – late pay­ments – this is where it could come in use­ful, but it’s not be­ing used,” he says.

Most busi­ness claims made tend to be to en­force debts, but they re­main few in num­ber. There were just 19 busi­ness claims made in Dublin in 2016.

“We’ve seen very small num­bers of busi­ness-to-busi­ness claims. Part of the rea­son is busi­nesses are more likely to write off debt,” says Ward. “Some­times they reach an am­i­ca­ble so­lu­tion in the in­ter­est of fu­ture relationships.”

There are also cases where a re­spon­dent’s fail­ure to present can have se­ri­ous con­se­quences for busi­nesses.

A small claims case in March be­fore the Dublin District Court saw Robert Krysiak take a claim against Bai­leys Auto Point Ltd for not fit­ting a diesel par­tic­u­late fil­ter on a ve­hi­cle he bought from them. The claimant got the miss­ing part fit­ted else­where and sought ¤2,000, from Bai­leys.

While the judge noted in or­di­nary cir­cum­stances he would i nsist on a re­pair-and-re­place sce­nario, as the re­spon­dent had not turned up he made a de­cree for the full amount, as well ¤ 120 for Mr Krysiak’s trans­la­tor.

“If somebody had op­posed you, you would not have suc­ceeded,” the judge told Krysiak.

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