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As simple as that?

17 October 16

The language is very different, but it is the new powers of the sheriff that may have the biggest impact: comment on the new Simple Procedure Rules

by Ayla Iridag

The long-awaited Simple Procedure Rules are coming into force on 28 November, replacing the Small Claims and Summary Cause Rules for most actions under £5,000. The purpose of the new procedure is to create a “swift, inexpensive and informal process”, and it is billed as “the start of a journey to online processing in civil courts”.

The changes themselves deal with two aspects of court procedure: the rules and the administration. The administrative changes refer to the new system for the uploading and processing of court fees and documents online. Guidance has yet to be published setting out details of exactly how this will work. However, what we have been provided with is the new court rules dealing with payment of sums up to £5,000 and the recovery of moveable property.

More complex and specialised matters, such as personal injury actions, proceedings for aliment and actions for recovery of heritable property, will be dealt with in the, yet to be published, Simple Procedure (Special Claims) Rules. The comments below only extend to the rules already published.

Comparison

What is immediately noticeable is the format and language used in the new rules. They are framed in a question and answer layout, clearly aimed at party litigants. Much of the terminology would be more recognisable to employment lawyers and those practising south of the border. Pursuers are now “claimants”, defenders are now “respondents” and sists are now “pauses”. For the traditionalists among us, this may be a difficult change to get used to, but it is not one that will have any practical impact on court procedure.

Perhaps the most significant change is the expansion of the sheriff’s powers. Rule 1.8 has probably sparked the most debate since the rules were published in June. It allows for a number of powers with which, as solicitors, we may not be entirely comfortable, but which lay persons may consider make complete sense.

First, the sheriff may “do anything or give any order considered necessary to encourage negotiation or alternative dispute resolution between the parties” (rule 1.8(2)). This is an interesting development in dispute resolution, particularly in cases between party litigants. While solicitors may have considered this route previously and ruled it out for one reason or another, party litigants often litigate without thought for the alternatives, and it is hoped that this rule will allow the sheriff to remove cases from court that could be better dealt with by alternative means.

Secondly, the sheriff may “do anything or give any order considered necessary to decide the case” (rule 1.8(3)). This is perhaps the most exciting and terrifying change to the rules. On the one hand, it may result in more abstract and creative motions calling before the court, and remove the argument that an order should not be granted solely on the ground that the sheriff has no specific power to do so. On the other hand, it will keep us on our toes, as opposing a motion will likely become a more difficult task.

The third new power of the sheriff is to “decide a case without a hearing” (rule 1.8(10)). This one is a less exciting prospect. It will require pleadings to be clear, full and detailed, which admittedly cannot be a bad thing. However, it may signal the end of skeletal defences in actions that would previously have been dealt with under summary cause procedure. It will also be interesting to see the impact such decisions will have in terms of the appeals process.

The last thing to consider is the fees structure. At present, the Small Claim Rules allow the successful party to recover costs at 10% of the sum awarded, with a minimum of £150, whereas in summary causes the fees are awarded on a similar, but lower, basis than ordinary cause actions. Expenses are dealt with in Part 14 of the new rules, but the fees schedule itself is yet to be confirmed. However, the Scottish Government is currently consulting on Scottish court fees. It seems that all fees are set to rise in order that Scottish Courts & Tribunals Service can achieve full cost recovery from the courts.

The table of fees included in the consultation suggests that fees, such as lodging dues, will rise but may still be broken down by the sum sued for. The suggestion seems to be that this will provide some continuity during this big change, but many practitioners may be disappointed that the opportunity has not been taken to increase small claims expenses.

Conclusion

So do the new rules reflect the goals intended? As with most changes, there will be those who feel the new rules do not go far enough. However, they represent an important shift in the way we deal with low value litigation in Scotland. By encouraging alternative dispute resolution they will free court time, allowing necessary hearings to take place sooner, and we may eventually see a shift away from automatic litigation at this level. We await the fees schedule before we can make comment on the aim of “inexpensive litigation”, as if claims over £3,000 continue to be dealt with in the same way, there will be little saving to be had.

The last aim of informality is one that may have the biggest impact on low level litigation and is likely to be the one we struggle with most as a concept. However, shake-ups like this force us to think differently, and this cannot be an entirely negative thing.

Ayla Iridag is a second year trainee solicitor with Clyde & Co, and a committee member of the Scottish Young Lawyers’ Association

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