Delivering proportionate justice: the case of TDS

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Everyone knows that going to court is time-consuming and expensive.

Martin Partington QC CBEIt is easy for the costs involved to far outweigh the value of the sums of money in dispute. For years, politicians, policy-makers and leading judges, in particular Lord Woolf, have been concerned about the problem. They say that justice should be ‘proportionate’. By this they mean that the cost of resolving disputes for relatively small amounts should not be out of proportion to what is at stake. The trouble with statements such as this is: what is proportionate? How do we know when things have got out of control and become disproportionate?

 Enter Tenancy Deposit Protection. What TDS and the other TDP schemes offer is a model form of ‘proportionate justice’. Think about it for a moment. In the case of the insurance backed schemes like TDS, landlords/agents pay a small amount of for each tenancy. This fee protects the deposit and guarantees free dispute resolution where parties cannot sort out the trouble for themselves.

Of course, the scheme does not pretend to work in the same way as a court works. There are no opportunities for oral hearings before a judge, for example. But the process of holding oral hearings is what racks up the cost of litigation in court (as well as the court fees, the costs of getting to court, etc.) In the case of the typical tenancy deposit dispute (where the average sum under discussion is typically under £500) these costs would usually result in disproportionate justice.

Because the process is paper-based, and reliant on evidence submitted to TDS, TDS also delivers outcomes much more quickly than the courts. At present, TDS resolves well over 98% of disputes in less than 28 days from receiving the parties’ consent to adjudicate.  In overall terms TDS resolves disputes within an average of 40 days from when it first receives the claim. This enables people to put disputes behind them and get on with their lives. (The Government has a website which appears to boast that small claims in the county court are dealt with in, on average, 6 months; see Are you impressed?)

I think that if Government and policy-makers are serious about PDR, TDS offers an effective model which with imagination might work in other contexts as well.

What do you think?


Chief Executive of TDS Steve Harriott, has also recently published an article in Inside Housing "Legal Legroom" on the benefits of alternative dispute resolution, which you can read here


Posted by Martin Partington QC CBE, Chairman TDS on 12 March 2012

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