This article concerns the need for a small claims court in Jersey with cost shields and that, by not having one, consumers will not have adequate access to the court. To illustrate the point, I need to tell a little story as to what happened when I cooked dinner!
Recently I went to the Co-Op Grand Marché store in Jersey and purchased food for a dinner I was cooking as a treat for my elderly mother who I was visiting that evening. She had been widowed a few years ago, and deserved some TLC.
Ironically (given what eventually happened) my family have all been on a bit of a health drive ensuring we eat lots of fish, fruit and vegetables and avoid saturated fat. This meal was not terribly ambitious: baked potatoes, pre-cooked salmon, chopped crunchy salad, and beetroot. As a dessert I chose a punnet of Jersey produced strawberries to be served plain (wanting to support local produce) although I did chuckle to myself how odd it was that Jersey strawberries were more expensive than the imported strawberries at around £2.20 a box!
I found the Co-Op Grand Marché store to be rather confused as there were building works and renovations going on, and items not in what I recalled to be their normal places.
The meal for that evening was entirely purchased from the Co-Op and was very enjoyable. My elderly mother was very happy that someone had taken the trouble to cook her a healthy meal. We ate no other shop’s food that evening.
Unfortunately, after midnight we both started to feel sick. We tried to sleep it off but by about 2am we both started to be ill over the next few hours. I became really worried for my mother because I was aware that food poisoning could be fatal for the elderly and discussed the possibility of taking my mother down to the hospital, but she insisted on staying put. We eventually got to sleep and felt pretty rotten for the next couple of days.
I phoned the Co-Op Grand Marché on the Sunday because I was worried about other people falling ill. I had to leave a phone message and asked that someone look into whether or not there was an issue about any of the foods, but nobody phoned back.
On Monday afternoon, I therefore wrote by email to the Store’s management and also contacted the Department of Environment to raise my concern who suggested that it sounded like it might be a pesticide on the strawberries that had caused the illnesses. I was assured that the issue would be noted and some inquiries made.
Eventually I received an email response and a phone call from the Co-Op General Manager with an unconvincing apology over the phone and a query whether or not we had seen a doctor. He stated that it seemed to be an isolated case but that the packaging was defective in not advising that the strawberries had to be washed thoroughly but that this would be changed going forwards. (I had in fact given the strawberries a quick rinse.) I was told that the Co-Op took “these matters extremely seriously” and offered a couple of vouchers for £20 each. I have to say that because there was no written apology, and that the food itself -which had all gone down the toilet- had itself cost about £20, that this gesture did not convey an “extremely serious” attitude at all. It wasn’t really the money itself that was important but receiving a genuine apology that we had been made so ill and that an elderly lady had been put at risk. I suggested instead that a donation of £100 to a charity of the Co-Op’s choice should instead be made together with vouchers and a written apology if it really took the matter seriously.
Instead, the Co-Op told me that they did not accept they “had done anything wrong” – where had the limp apology over the phone now gone? – and then placed the matter with its insurers who (when pressed for a response) have stated that they may involve the supplier. The insurers have in fact now instructed local Jersey advocates; the latest email stating that they will defend any claim.
To me, this experience is instructive in a number of respects:
That aggrieved consumers are often more concerned about being taken seriously and for a genuinely intended apology than money compensation;
That clumsy handling of a consumer complaint can escalate the issues wholly unnecessarily;
That it is perverse that businesses or insurers may choose to spend large amounts of money on lawyers than on addressing the consumer’s complaint at the outset which might actually be easily solved;
That without a small claims procedure in Jersey that shields parties from legal costs if you lose, consumer claims are unlikely to be pursued by the average person where the risk is having to face large legal costs if you do lose. The proportion of costs to a small claim itself is disproportionately high and ideally, it would be better for litigants on both sides to be encouraged to act in person in such claims, if a court case just cannot be avoided.
Unfortunately, the current scheme in Jersey is that small claims are dealt with in the Petty Debts Court. If they are defended, there are no protections in the amount of costs that may be awarded, except an assessment or “taxation” process which can still lead to large amounts in costs being awarded. This was, of course, the recent experience of Mr. Darius Pearce in Jersey that some may have heard of in the newspaper.
Similarly, in this particular food poisoning case, were proceedings to be issued in the Petty Debts Court, the insurers of the Co-Op have indicated a desire to join the supplier as a party, and also require experts, so costs could very easily reach £20K if the claim remains contested.
How can this be right when the complaint seems simple enough: “your food made us ill and there is no other reasonable explanation.”
In contrast, in the Jersey Employment & Discrimination Tribunal, you can’t claim costs and there is an advice centre called “JACS” that will help you, not too dissimilar perhaps to the CAB that can provide assistance to someone involved in a court case.
In the Uk, there are (& have been for many years now) various protective cost regimes for small claims, normally provided you do not act unreasonably.
If we take access to justice seriously, I suggest that there should be reforms providing a costs shield in small claims in Jersey, provided you don’t act unreasonably in how you pursue your case.
In the meantime, following this experience, I have unfortunately lapsed back into red meat and saturated fat as some of the foods from that doomed “healthy” meal have unfortunate memories for me.