At present, the small claims and summary cause procedures are intended to provide a quicker and less complicated means to resolve low-value (less than £3,000 and £5,000 respectively) claims. These procedures are intended to be accessible to litigants without solicitors and the amount of expenses recoverable from the successful litigant’s opponent is capped. While the cap on expenses makes the use of solicitors less attractive, some parties are still represented by lawyers in these courts. The procedure is less complex and places less emphasis on written pleadings as compared to the ordinary cause procedure, and an onus is placed on the sheriff to determine and note the legal issues and encourage parties to settle matters between themselves whenever possible.
A Summary of the Draft Simple Procedure Rules
Following the Gill Review and the Courts Reform (Scotland) Act 2014, the simple procedure will now replace the small claims and summary cause procedures. Draft rules produced by the Scottish Civil Justice Council (the SCJC) are currently in consultation and will apply to actions valued up to £5,000 for payment of money (other than personal injury), actions for delivery, and actions ad factum praestandum. A separate set of rules, called the Simple Procedure (Special Claims) Rules, will be issued in future for actions valued at under £5,000 for personal injury, multiplepoinding, count, reckoning and payment, forthcoming, aliment, and recovery of heritable property.
Unlike the small claims and summary cause rules, which are drafted in much the same way as all rules of court, the draft simple procedure rules are presented in a “question and answer” format that also sets out the procedures. As the procedure is intended to be accessible to party litigants, the rules are set out in plain language. Legal terms are avoided when possible; “sist” is replaced by “freeze” and the pursuer and defender are now the “claimant” and the “responding party”.
Under the existing small claims and summary cause procedures, a first hearing date is fixed when the summons is warranted for service. The defender is then required to lodge a form with the court indicating that he wishes to defend the action (if no form is lodged, decree in absence is usually granted) and both parties then appear at the hearing. The sheriff is then addressed by the parties, notes the issues and fixes further procedure as necessary. Typically this will be an evidential hearing if matters remain in dispute. The defender need only lodge written defences if ordered to do so by the sheriff.
Under the draft simple procedure rules, and unlike the small claims and summary cause rules, there is no hearing fixed when the claim form is received, but rather the “last date for service,” “last date for response,” and “date of first consideration” are fixed. The last date for service is 35 days before the date of first consideration, and the last date to lodge a response form is 14 days before the date of first consideration. Both the claim form and the response form require the litigant to set out his claim or defence in full, as well as the supporting evidence and witnesses to be called. As with the small claim and summary cause procedures, if no response is received, the claimant may apply for decree. (The responding party may also apply for a time to pay order, or indicate that he intends to settle the claim.)
If a response form is received, the papers are sent to the sheriff, who considers the forms and issues first written orders to parties. In the first written orders, the sheriff will normally fix a hearing at which settlement will be negotiated if possible, or if not, evidence will be given and the case will be decided. Alternatively, the sheriff may assign a case management conference in the first written orders. As with the small claims and summary cause procedures, the rules of evidence are relaxed. Parties need to formally cite witnesses only if they are otherwise unable to arrange for the witness to appear. The draft rules contain forms allowing parties to request various orders, such as freezing the case, and a set of standard orders that the sheriff can either use or adapt. The consultation document indicates that the standard orders are intended to be reviewed and adapted over time.
Comments on the Proposed Rules
As my PhD project is concerned with party litigants in the Scottish civil courts, and more generally in the relationship between lay people and the law and civil procedure, I was interested in the new simple procedures and prepared a response to the consultation. A few of the issues raised by the new rules are highlighted below.
A New Timetable
The most dramatic change made in the simple procedure rules is the elimination of an automatic first hearing and the presumption that most cases will call in court for the first time at an evidential or substantive hearing. This can be viewed as part of a larger trend in avoiding hearings in court cases whenever possible. Within the last decade the personal injury and commercial court procedures, which have been widely regarded as successful, have taken a similar approach to reducing court hearings and encouraging negotiation and settlement between parties. However, it is important to note that in both of these procedures, unrepresented parties are quite rare and the court is thus able to rely on solicitors to adhere independently to a strict timetable.
In my view, there is considerable value in the opportunity an early procedural hearing provides for dialogue between the sheriff and parties, and for the sheriff to explore the possibility of settlement or mediation. The sheriff is able to ensure that he understands the parties’ respective positions and that the parties understand the relevant issues and what will be required in the a full hearing. While the simple procedure rules provide for the possibility of the sheriff providing directions to parties in writing before a substantive hearing, the draft rules do not allow for the sheriff to confirm that the party understands the directions, or to assess whether the party has any additional needs, in the same way that a hearing in person does.
As I noted in my consultation response, much of the accelerated timetable of the simple procedure, as compared to the small claims/summary cause procedure, is achieved by requiring the responding party to lodge a more complete response form in as few as 21 days from the date of service. This now includes listing the evidence they intend to present and witnesses they plan to call. There may be some value in requiring all of this information at an early stage, as it allows the sheriff to evaluate the case properly from the beginning and, indeed, it may help focus the mind of the responding party in a way that only lodging a form indicating an intention to defend may not. However, the amount of time allowed is very short and will make it particularly difficult for responding parties to seek any advice before a full defence is due.
The draft simple procedure rules include provision for the sheriff to dispose of a case at case management hearing with parties’ permission. If the sheriff considers that the case concerns a matter of law only, he may make a decision on the case in chambers, again, only if parties consent. In essence, parties are thus waiving their right to a full hearing.
The difficulty with this is twofold: first, even if a case is misconceived, any award of expenses against the unsuccessful litigant is capped, and if he wishes to proceed he therefore has little reason to agree to an early disposal. In a more cynical view, it could even be considered that a persistent litigant has an incentive to proceed, in the hopes that his opponent will offer a “nuisance settlement” or be willing to enter into more favourable negotiations rather than proceeding to a potentially expensive and time-consuming proof hearing.
The second difficulty is the issue of ensuring that litigants are able to give informed consent to disposal of their case and waiving their right to a full hearing. It may be particularly difficult when a case is being considered on a point of law only “on the papers,” as a lay person may not know what their case in law should be well enough to provide all of the relevant information and arguments. It seems inevitable that many litigants who receive an adverse decision under these provisions will wish to present further information after the fact. It is worth noting that the draft simple procedure rules make provision for the Appeal Sheriff to allow parties to raise new legal arguments at the appeal stage, and it seems likely that many of these parties will seek to try a new legal avenue on appeal.
The presentation of the rules is in a more user-friendly format than the small claims and summary cause rules. The elimination of technical legal terms proposed in the rules is welcome, although I consider that some portions of the rules still require quite a close reading to be properly comprehended. This may be a product of the SCJC’s intention to present rules that do not require additional guidance, but the problem with this is that rules of court need to be legally precise, and this is not always compatible with the need for guidance to be presented simply and in a manner that can be readily understood by all. In addition, replacing words that already have a meaning in plain English, such as “defender” being replaced with “responding party,” will not necessarily advance the layperson’s understanding of the rules. That most wonderful of Scottish legal terms, “avizandum,” is replaced with “takes time to make a decision,” which is an alteration that is both entirely necessary and a little sad.
It is worth considering that, although it is sometimes virtually taken for granted that “plain language” provides better access to the court process for the layperson, this notion is not entirely uncontroversial. (One particularly interesting view is presented in Rabeea Assy’s “Can the law speak directly to its subjects? The limitation of plain language” J. Law & Soc. 2011, 38(3), 376-404.) The law and legal procedures, no matter how simply presented, are often nonetheless complex. In my own view, plain language is necessary, but not sufficient. To be truly accessible to laypeople, rules and guidance are best presented in a variety of formats (such as written rules as well as flow charts or “idiot’s guides”) to account for the ways that different people process information, and for differing levels of education and literacy.
I consider that the best feature of the draft rules is the more use-friendly format and the forms will be provided for most steps of the process. However, I think that even in the current format, additional guidance would be useful. I am less convinced by the new procedure itself, as it seems overly optimistic to expect that party litigants will present their cases fully formed and ready to proceed to an evidential hearing from the very beginning. Communication is vital, as unrepresented litigants often begin the process with misconceptions about the court and the process. (See the recent case of Anderson Floor Warming Ltd v Antrim Electrical & Mechanical Engineers Ltd  CSOH 164 for an example of the consequences of such misconceptions.) If, as I suspect, sheriffs will be making orders for a case management conference at first consideration of most cases involving unrepresented litigants, the new procedure actually only creates a further delay compared to the current rules. Without a case management hearing, it seems likely that many evidential hearings may be collapse on the day, wasting the time of litigants, the court, and witnesses.
Finally, it is worth stating that the SCJC’s task in producing drafting the simple procedure rules is by no means easy. When producing rules for intended lawyers (such as in the ordinary cause) it is possible for rule makers to rely on a set of skills and a degree of training that they can expect all solicitors to possess. There can be no such assumptions made in rules designed for lay people, and these rules must cater to a wide and diverse audience. At the same time, catering to laypeople inevitably involves shifting a least part of the burden of the process from the litigant to the judge or the court. The breadth of the simple procedure itself presents its own challenges. The procedure must be proportionate for both litigants and the court, but what is proportionate to recover a debt of £5,000 will almost certainly not be proportionate to recover a debt of £100. These considerations, along with an increased demand for efficiency on court processes and the limited resources available to the Scottish Court and Tribunal Service, are just some of the challenges that the simple procedure rules must navigate.
The last date for responding to the consultation is 2 March 2016.
~ Halle Turner
Halle is a PhD student within the School of Law, supervised by Mr Stephen Bogle and Professor Tom Mullen. Her thesis is entitled ‘The Party Litigant in the Scottish Civil Courts’. Halle recently spoke to Policy Scotland about her research:
You can reach Halle at: firstname.lastname@example.org
Further information on the consultation can be found on the Scottish Civil Justice Council news page.