How do you design court rules with unrepresented litigants in mind? The new Simple Procedure Rules attempt to realise this desire of the Gill review. One of the drafting team explains the thinking
On 28 November 2016, the simple procedure rules will come into force for those types of cases that currently proceed as a small claim (broadly, actions for payment other than personal injury cases and aliment, actions for delivery and actions ad factum praestandum), up to a value of £5,000.
Simple procedure has been a long time in development. In 2009, Lord Gill’s Scottish Civil Courts Review recommended that small claims and summary causes should be replaced by a single form of procedure, “designed with unrepresented litigants in mind,” which allows the sheriff to “take an interventionist approach to identify the issues, assist parties to settle if possible, and to determine how the case progresses”. The Courts Reform (Scotland) Act 2014 provided for this and gave it the name – perhaps a slight hostage to fortune – of simple procedure.
The Scottish Civil Justice Council’s Access to Justice Committee was responsible for developing rules of court for simple procedure, and was keen that both the procedure and the rules should meet Lord Gill’s ambition, be developed with usability and readability by the non-lawyer in mind, and take full advantage of the new systems for online interaction with the court being developed by the Scottish Courts & Tribunals Service (SCTS).
In winter 2015, the SCJC therefore conducted a full public consultation on an early draft of the rules, in which a wide variety of interested parties from the Scottish legal community and beyond participated. It also arranged for focus group testing of the rules and – for the first time – a readability exercise, where a group of non-lawyers were invited to participate in scenario-based exercises with the rules, to see how easy it was to find the right answer to the problems, how accurate the answers they found were, and how confident the participants were that they had found the right answer.
Drafting for the layperson
Following these consultation activities, the Act of Sederunt (Simple Procedure) 2016 was made. It is, at first glance, an intimidatingly large instrument, over 250 pages long. But the bulk of it is the forms to be used, and of the 65 pages of rules in sched 1, the parts which the ordinary user can be expected to be most interested in – about making and responding to a claim, and how the court will deal with that claim – are short and straightforward.
The Access to Justice Committee put a lot of care into the organisation and division of the rules into logical topics, grouping everything the reader needs to know about making a claim, for example, in a single place. The rules are also largely presented in chronological order, a rarer feature of procedural legislation than might be hoped to be the case. Particularly when an increasing proportion of users will principally access the rules online, finding the rule that governs the part of the process you are interested in should be easier than ever. Feedback from the readability exercise was that this had been successful, with most participants, though non-lawyers, able to locate information quickly and confidently.
The focus on readability means that the rules have a very different look and feel to typical court rules. The headings are presented as a series of questions: for example, “How do you complete a Claim Form?” (rule 3.3), or “When must the sheriff make the decision?” (rule 13.2). This, it was felt, best replicated the experience of trying to find information in a complex document like a set of court rules, which most users come to with a particular problem or question in mind. It also allowed more information about the content of a rule to be presented in a punchy, readable way. The rules are also drafted with a greater emphasis on complete sentences and lists than is typical of court rules, which are often so intricately structured that they can be very difficult for laypeople to follow.
The committee also decided – as is no doubt immediately apparent to litigators – to update any terminology that was considered to be archaic, obscure or hard to understand. The ability to sist a case is replaced with the power to pause the progress of a case, for example. This approach to language, and many of the individual decisions taken, were the subject of some of the most interesting, and most strongly held, views in consultation responses.
As a result of these responses, the committee recommended a number of changes to the consultation draft of the rules, and now considers that the final draft represents an appropriate balance between intelligibility and tradition. For example, the parties in a simple procedure case are the claimant (who sets out their case in a Claim Form), and the respondent (who sets out their defence in a Response Form).
A new approach to the layout and wording of court forms is responsible for much of the length of the instrument. These forms now explicitly lead the person completing them through the matters that they should be considering and the steps they must take. They contain more guidance and explanatory material than is typical in court forms and are designed to be capable of being completed online, on a computer and printed out, or printed out and completed by hand. A new style of interlocutor – the simple procedure order – is also prescribed. Again, the tone is more explanatory, with the standard orders contained in the instrument being drafted primarily with the lay litigant in mind.
Evolution, not revolution
Despite these superficial and aesthetic changes, much of the procedure underlying the new rules will be familiar to court practitioners. For the first time, the rules (in part 1) set out principles which those participating in a simple procedure case – the sheriff, representatives and litigants – will be expected to respect. The sheriff is also given a very broad set of powers for the management and deciding of a case (see rule 1.8).
After the Claim Form is sent to the court and formally served on the respondent (see part 3), the respondent is given three weeks to send a Response Form to both the claimant and the court. In a change from existing procedure, no hearing date is assigned at this point.
Whether to hold a hearing, and what sort of hearing should take place, is entirely at the discretion of the sheriff, and depends on the nature and complexity of the dispute. The sheriff is empowered, in appropriate cases, to propose that a decision should be made without any hearing at all (see rule 7.6 and the standard orders prescribed for this purpose). At this point, the sheriff can also refer cases to an available mediation service. In most disputed cases, however, the sheriff can be expected to order either a case management discussion (see rule 7.7) or a hearing with evidence (see part 12). Case management discussions and hearings can take any form and proceed in any manner considered appropriate by the sheriff for negotiating a settlement or deciding the claim (see rules 1.8(6), 7.7(1) and 12.6).
The major change in undefended cases also follows from the removal of hearing dates. If the date by which the respondent must send their response to the court and the claimant passes without them having done so, the claimant is given two weeks to make an Application for a Decision, effectively a minute for decree, or else the claim is automatically dismissed (see rule 7.4).
The process of receiving a decision and extracting a decree has also been reformed in simple procedure cases. The successful party will now receive a Decision Form, containing the terms of the extractable decree, as soon as possible after the final decision is made. The rules then prevent enforcement of that decision for four weeks or while the decision is being appealed (see rule 15.2).
Making claims online
Simple procedure will also be the first aspect of civil litigation in Scotland to work with SCTS’s new online claims portal. This means that members of the public and representatives will be able to make and respond to simple procedure claims online, including submitting all forms and associated documents to the court using the portal, and making forms and documents available to other parties using the portal.
The use of the portal is optional, and using the portal to commence a claim does not oblige other parties to use the portal, or require the claimant to use the portal to make any subsequent applications in the same claim. The rules simply provide that, when a party is required to send something to the court, or the court to a party, or a party to another party, that may be done using the portal on the SCTS website (see rules 6.5 to 6.7). Formal service of any forms or documents still has to be done in the traditional, paper-based way.
Electronic versions of each of the simple procedure forms, for use with the portal, will be available on the SCTS website.
As a result of views received during the consultation, the decision was taken to split the implementation of simple procedure, with the first categories of case becoming subject to simple procedure on 28 November this year and the rest – mainly special types of summary cause such as PI, housing claims, multiplepoindings and actions of count, reckoning and payment – following next year. The reason for this decision was to allow for more consultation on the proposed rules for those types of action, and so that lessons could be learned from the experience of simple procedure as it is implemented in the courts from November.
The Access to Justice Committee hopes that simple procedure will be a success. But it does not see its job as ending when the rules are made. The committee will be taking an active role in monitoring the implementation of the rules and learning from the experience of court staff, litigators and the public in using the new procedure. Where problems arise, or where efficiencies or improvements can be made, the committee wants to know about it so that it can consider users’ practical experiences and propose changes to the rules to the Scottish Civil Justice Council. Readers of the Journal are therefore encouraged to get in touch with the Council, at firstname.lastname@example.org, with any thoughts or ideas.
Luke McBratney is deputy legal secretary, Rules Rewrite Team, Lord President’s Private Office
Where to find the law on simple procedure
As always, creating simple procedure has involved a number of pieces of legislation, made by both the Court of Session and the Scottish Ministers. This table contains a guide to where to find the law on simple procedure and what is covered by each instrument.
|The Courts Reform (Scotland) Act 2014, ss 72 to 83
||Creates the simple procedure and makes provision about evidence, transfers and appeals.
|The Act of Sederunt (Simple Procedure) 2016 (SSI 2016/200)
||Contains provision about the new procedure, the simple procedure rules themselves (sched 1), the simple procedure forms (sched 2) and standard orders the sheriff may issue (sched 3).
|Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment No 4) (Simple Procedure) 2016 (forthcoming)
||Makes minor amendments and corrections to the simple procedure rules and forms, and makes transitional provision for existing small claims and summary causes.
|Act of Sederunt (Fees of Solicitors in the Sheriff Court and Sheriff Appeal Court Amendment) 2016 (forthcoming)
||Amends the sheriff court and Sheriff Appeal Court tables of solicitors’ fees to provide for fees in simple procedure cases (but see the expenses-capping order, below).
|The Courts Reform (Scotland) Act 2014 (Commencement No 7, Transitional and Saving Provisions) Order 2016 (SSI 2016/291)
||Brings into force simple procedure and describes the categories of case covered by the first phase of implementation.
|The Court Fees (Miscellaneous Amendments) (Scotland) Order 2016 (forthcoming)
||Sets out the fees to be paid by litigants for using simple procedure.
|The Sheriff Court Simple Procedure (Limits on Award of Expenses) Order 2016 (forthcoming)
||Caps recoverable expenses in certain types of simple procedure case.
|The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2016 (SSI 2016/290)
||Provides for civil legal aid fees payable to solicitors conducting a simple procedure case.