Seven years after the Gill Report, November 2016 will see the introduction of the new Simple Procedure for claims of up to £5,000 in the Sheriff Courts, Scotland’s County Court equivalent. This e-update considers the key features of what promises to be a wholesale reform of procedure for claims of this value.
The current Summary and Small Claims procedures will be replaced with the Simple Procedure Rules. For complex claims, including those relating to personal injury, we will need to wait until early 2017 for the implementation of the Simple Procedure (Special Claims) Rules.
On 6 June 2016, Lord Carloway, Head of the Scottish Civil Justice Council, published the Report on the Consultation which noted some of the key features of the new rules and also informed about upcoming changes to the initial drafts, such as:
- Plain English prevails – legal jargon and formality are held at a minimum. For example only, a stayed case is now “paused” and no longer “sisted”.
- Alternative Dispute Resolution is encouraged wherever suitable for the case, and Sheriffs should actively explore this option.
- The Court issues a timetable to litigants when a case is started. Further, a Sheriff must consider a case and issue first orders within two weeks from the date the Response Form is received, assisting smooth process of a case.
- The new rules include Standard Orders which the Sheriff can make, making judicial decrees more understandable to party litigants (litigants in person).
- The rules are laid out with explanatory headings, brief explanations in italics and flowcharts of the procedure, increasing the ease of navigating them.
- A Sheriff can dismiss a case at any time, helping to ‘weed out’ unmeritorious claims and deter unreasonable behaviour by litigants.
- Instead of moving straight to a hearing, a Case Management Conference can be held by the Sheriff at the start of a case to determine any issues between the parties and the best method of resolving the matter.
- The Claim Form provides for parties to explain the evidence they wish to lead and why it supports their claim. This allows for irrelevant evidence to be spotted early.
The Simple Procedure will not allow for counterclaims, which generally indicate that the claim is more complex and can certainly take extra time to resolve. Such cases may be remitted to the higher ordinary procedure.
Appeals are possible to the Sheriff Appeal Court on points of law only. Experience with party litigants prompted feedback that this should be highlighted more strongly: many litigants believe that an appeal would allow them to present their complete case afresh before a new court.
A further requirement in the new rules is that lay representatives must not make claims or arguments which have no legal basis. While this is reasonable to expect from lawyers, it may be asked if this provision implies a presumption that lay representatives or party litigants must know the legal basis for their claim. An amendment to not bring knowingly or intentionally claims without a legal basis might be more appropriate, so people bringing a case in good faith but without a legal basis will not be punished.
The new rules are aimed squarely at swift resolution of low value cases, and simplifying matters for non-legally qualified parties. These intentions are certainly admirable, but they are reminiscent of the drivers behind the outgoing Summary Cause and Small Claims procedures. Pressure of business in the courts and the involvement of lawyers on both sides has seen innovative and early resolution strategies fall by the wayside in favour of a procedurally formulaic approach. It is sincerely hoped that, in the spirit of the on-going wholesale reform of Scotland’s civil court procedure, practitioners and the courts will work together to embrace the simplified approach to low value cases.