Last month I managed to take some time out of the office to attend the SYLA talk entitled “Beyond the Basics: Simple Procedure”. The intention of the talk was to focus on how the rules replacing the small claims and summary cause procedure have developed in practice since being brought in fourteen months ago.
We were lucky enough to be addressed by summary sheriff Peter McCormack who gave us his overview on the differences between Simple Procedure and Small Claims/Summary Cause. The sheriff also very kindly offered some insights into the procedure from a sheriff’s perspective which will be particularly useful for our debt recovery team going forward. Some of those insights included:
- The rules are designed to allow sheriffs to make any order considered necessary to deal with a case. As the sheriff put it, “anything goes”. So long as a party can justify asking for something, and if it is a good idea, then the sheriff may well grant it.
- The rules are littered with references to Alternative Dispute Resolution (ADR). Throughout the process of a case, sheriffs have the power to refer cases to ADR so that parties can be assisted in reaching a settlement outwith court (or at the very least narrowing down the points in contention). Many sheriffs are finding this a viable option in dealing with cases that are, as his lordship put it, a dog’s breakfast. However, the sheriff has noticed more often than not parties return to court looking for a decision. As the sheriff put it, you can lead a horse to water, but you can’t make him drink. To mitigate the time lost here ADR orders are now being set with fixed time limits to keep things moving along.
- As counterclaims are no longer competent, respondents who feel they are entitled to legal recourse arising from the same subject matter they are being sued for would need to raise their own separate Simple Procedure action, rather than lodge a counterclaim. The parties can then apply to have the cases run in tandem.
- No rubber stamping – there is currently a mistake in the rules. Sheriff clerks are unable to deal with non-contentious Simple Procedure matters without the approval of a sheriff. This of course can cause delays. The sheriff noted that new rule changes will be coming in to address this.
- Although the sheriff has the power to put a defended case straight to a full evidential hearing, sheriffs will almost always fix a Case Management Discussion in the first instance where a party is not legally represented.
- There is no initial requirement to lodge evidential documents with claim forms, these can come at a later stage. However, sheriffs would prefer that key documents are submitted with claim forms where cases concern road accidents or consumer credit contracts.
The sheriff noted that we should look forward to the implementation of the upcoming Special Claims Rules that will allow actions including personal injury, eviction, and ailment to be dealt with through Simple Procedure. Although the sheriff was not aware of the content in the new rules he was hoping that there would be a noticeable reform to how the Heritage Court is handled.
The sheriff’s parting comment was that Simple Procedure, although intended be a speedy, inexpensive and informal way to resolve disputes, is proving anything but.
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