November is a month for fireworks, bonfires and darker nights drawing in. This November is also a month of major reform to the Scottish court system.

Monday 28 November 2016: what is changing?

  • Companies, partnerships and unincorporated associations will now be able to apply to represent themselves in court. This means, where the court’s permission is granted, directors, partners or other officers could appear in court on behalf of their organisation. Previously it was necessary to instruct a solicitor or counsel to appear.
  • The new Simple Procedure Rules come into force, changing the way in which claims under £5,000 are dealt with. This is likely to have an impact on both businesses pursuing claims, such as debt, as well as those businesses regularly facing claims from consumers.

1. Lay representation for companies and other entities

Until now, corporate entities, such as companies and partnerships, required to engage either a solicitor or counsel to represent them in Scottish court proceedings. From 28 November, section 79 of the Courts Reform (Scotland) Act 2014 comes into force. It allows the court to grant permission for a lay representative (i.e. someone who is not legally qualified) to conduct the proceedings. The new powers mean that the following representatives of their organisation could appear in court:

Type of non-natural person

Relevant position

a company

a director or a secretary of the company

a limited liability partnership

a member of the limited liability partnership

any other partnership

a partner in the partnership

an unincorporated association of persons

a member or office holder of the association

The new power is not, however, a carte blanche. The right to represent the entity can only be exercised with the permission of the court, and that permission can also be restricted or revoked.

It is also worth being aware that where an award of costs is made against an entity, an award may also be made against the individual representing that entity personally, if his/her conduct has been unreasonable.

It will be interesting to observe how often the new right is taken up by corporate entities.

2. New Simple Procedure for claims under £5,000

Designed to be, as the name suggests, simple and accessible, the procedure is intended to be user-friendly for parties representing themselves. It will be used for all claims under £5,000 and is therefore likely to have immediate impact for businesses bringing claims for payment and in turn, also for those facing claims from consumers.

The new Simple Procedure Rules contain a step-by-step guide designed with a lay person in mind. A major innovation of Simple Procedure is a new system for the online processing of claims (the Integrated Case Management System). This online portal will be available to commence actions, submit court documents, pay fees and track progress of a case online. It has been designed to make low value claims faster, less expensive and more accessible.

However, although the online portal was launched across all sheriff courts earlier this month, the Scottish Courts &Tribunals Service has recently announced that it needs more time to ensure that the online access is extensively tested with future users and fully protected against any cyber security threats to data or financial transactions. Its introduction will therefore be delayed until after the new year.

If the Rules prove to be as user-friendly and accessible as is intended, one possible consequence could be a rise in claims, particularly against companies in consumer facing sectors. Likewise, for businesses pursuing debts, the new online system has the potential to revolutionise processes and procedures for debt collection.

With the introduction of Simple Procedure and the new system of lay representation for companies, the month of November has the potential for real fireworks in the Scottish court system.

If you would like to discuss any of the changes to your processes and procedures ahead of the introduction of these changes on 28 November, please do get in touch.