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The New The New "Simple" Court Procedure - 16th January 2017

A new Court procedure in Scotland came into operation on 28 November 2016.

“Simple Procedure” replaces Small Claims and parts of Summary Cause procedure. Small Claims and Summary Cause procedure dealt with claims with a value of up to £5,000.00.

Certain parts of Summary Cause procedure are continuing for the time being (for example, in relation to recovery of heritable properties and personal injury) – but generally speaking if the monetary value of your claim is less than £5,000.00 then your action would now be raised under the Simple Procedure.

The rules themselves state that “Simple procedure is a court process designed to provide a speedy, inexpensive and informal way to resolve disputes”.

In the words of the Rt. Hon. Lord Carloway, “The simple procedure has been designed with the party litigant in mind, using accessible language and incorporating user-friendly guidance into the rules.”

In this respect, the various forms which require to be used when following the procedure, and the language of the rules generally, are intended to be more user-friendly – being set out in self-explanatory (question and answer) style and in plain English, rather than using traditional legal terminology. For example, Pursuers are now Claimants, Defenders are now Respondents, and putting a case on hold is now called a Pause rather than a Sist.

The format and language of the Small Claims and Summary Cause Rules and Forms may have caused a bit of difficulty to party litigants, but the real challenges and issues, to all parties concerned, arose when an action became defended.

In this regard, the really significant changes are as follows:-

1. If an action is defended, it does not as the next step automatically call in Court. Once a Respondent completes a Response Form and lodges the form with the Court, all of the papers are considered by a Sheriff in his chambers. The Sheriff has a number of options open to him – including deciding the case either way there and then without hearing any further from either side, setting aside a date for a “Hearing” (more on Hearings to follow), or in the first place fixing a Case Management Conference. The latter is essentially a discussion amongst the Sheriff and both sides before the Sheriff decides what to do next. It can take place via a telephone conference call.

2. At all stages, including when the Sheriff considers matters in Chambers as above, there is an onus on the Sheriff to consider alternative means of resolving the dispute, out of Court. The Sheriff can order the parties to try and resolve the dispute by alternative means. There is no restriction as to what alternative means can include. This could involve commonly recognised alternative means, for example, compelling the parties to sit down and discuss matters / negotiate, or having a third-party with a particular skill set determine certain points in dispute. For example, a mechanic could inspect an arguably defective car and determine the cause of the fault. If a more bespoke means of resolving a dispute appeared to the Sheriff to fit the particular circumstances of a case then the Sheriff would have licence to be creative.

3. The onus is generally more on the Sheriff to proactively get involved and be inquisitorial, rather than the traditional adversarial system which operates on the basis that the Sheriff to a larger extent takes a step back and greater responsibility rests with the parties. The Sheriff also generally has more flexibility than ever before

4. The greater onus on and flexibility of the Sheriff will include when parties appear in Court for a “Hearing”. Assuming that the Sheriff has not determined an action at an earlier stage, a Hearing is a calling of the case in Court to enable the Sheriff to make a final decision. One of the main reasons that it would likely be necessary for a case to proceed to a Hearing would be that matters of fact are in dispute between the parties and the Sheriff requires to determine which version of events he finds more probable. The Sheriff has complete flexibility to determine how he wishes any evidence to be led. The Sheriff may for example specify that only a set amount of time may be spent on hearing evidence from a particular witness. The Sheriff may ask questions of witnesses as the Sheriff chooses.

5. The theme of flexibility continues in relation to expenses. There does not appear to be any set guidelines or formulas in terms of liability for and quantum of expenses. Previously, expenses as a general rule payable by the unsuccessful party were in a Small Claim usually restricted to a maximum of around 10% of the sum sued for, and there was a fixed table for calculating expenses in a Summary Cause.

6. Counterclaims are not permitted in Simple Procedure. If a counterclaim were to be allowed then the action would have to transferred and proceed under the “Ordinary” Court procedure (which generally deals with actions with a monetary value of more than £5,000.00).

7. Simple Procedure will we understand be the first part of Court business to “go online”, through the Scottish Courts pending new system. We await hearing when this is intended to be launched.

The Sheriff more than ever will have flexibility, and options and powers not before available. The Sheriff will also have more responsibility. The Simple Procedure will certainly not make the job of Sheriffs any more simple.

For an initial period at least, it will also not make the job of predicting how a case will be dealt with and ultimately determined any more simple.

The Simple Procedure does, however, we hope set a platform for its stated goals to ultimately be achieved.

By way of one example, under Small Claims and Summary Cause, in practice it was too easy for a party to refuse to engage with its opponent and make its position clear, and cause its opponent a lot of irrecoverable time and cost. Often matters in dispute could be resolved or at least substantially focused, or spurious positions weeded out, if parties had to further explain themselves. Sheriffs now have the ability, and a greater responsibility, to stop this type of scenario under the Simple Procedure. A Sheriff can order a party to discuss issues and make their position clear, and if they party fails to do so the action can be determined against them.

Whether it will be cost effective for a lawyer to represent a client in relation to a defended Simple Procedure action will in part depend on the level of recoverable expenses. As stated above, the level of recoverable expenses is not yet clear.

The Dispute Resolution team.

Last updated: 11.35am, Monday 16th January 2017

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