Simple procedure - How simple is it?

Introduction

A wholesale reform of the Summary Cause and Small Claims Rules took place on 28 November 2016. Seven years after the Gill Report, the Act of Sederunt (Simple Procedure) 2016 introduced a brand new procedure and forms to be applied to all actions seeking payment of sums below £5,000; the “Simple Procedure Rules.”

Purpose

The “old” Summary Cause/Small Claims rules were regarded as being too complicated. The man on the Clapham Omnibus had difficulty understanding them and the legal jargon they contained. He did not like appearing in court, where the adversarial atmosphere confused and intimidated him. Further, there were two different sets of rules (Summary Cause and Small Claims) when there could easily be just one.

The purpose of the new Rules was clear. They were drafted in plain English. They were easy to follow and easy to use. The Forms themselves looked more like Legal Aid or Benefit Forms. They were to be submitted to court (and to willing opponents) electronically, bringing us in line with practices down south and arguably bringing us in to the 21^st century.

Practice

The Rules have now been in force for 4 working weeks. In that time we have raised a significant number of Simple Procedure actions. Our experience has been mixed.

The Claim Forms themselves are anything but simple. The questions are sometimes confusing, especially upon the crucial issue of jurisdiction. Remember; the rules on jurisdiction have not changed. I foresee many party litigants (and possibly some agents) directing Claim Forms to the wrong Sheriff Courts as a result.

The attitude of the Sheriff Clerks throughout Scotland to these new Forms/Rules has been a mixed bag. Some appear to be examining the Forms closely, and freely returning them for amendment in circumstances which simply do not merit that stance. Others have been taking a more lenient, and common sense, approach and that has to be congratulated.

The Claim Forms themselves are large (circa 11 pages). When you take in to consideration the fact that a copy needs also to be sent to the Sheriff Clerk, the volume of paper being used up has been alarming. The same can be said about the volume of paper that needs served on each Respondent.

“What paper?”, I hear you ask, given the statement at the start of this article about the electronic submission of claims. I am afraid to say that the lauded online Integrated Case Management System developed by the Scottish Court Service is not yet operational, and so cannot yet be used. As a result everything currently needs to be printed off and submitted personally or by post.

The method of service of these Forms has been changed from Recorded Delivery to Special Delivery Guaranteed. The practical effect of this change has been to more than quadruple the cost of service of these paper (from circa £1.75 to £7.50); a hefty increase in outlays both for clients and for party litigants.

Simple?

I am sorry to say that my initial experience of these new Rules has been anything but simple. The Forms are in parts confusing, and I think many party litigants will be directed by them to raise proceedings in the wrong court. This will hit them in their pockets by way of an adverse award of expenses, as will the significant increase in service costs.

The lack of an operating online Integrated Case Management System has been a major disappointment. This was one of the major selling points of these new Rules. It was meant to bring us in to the 21^st century. There is no news yet on when the system will be up and running, but I would hope it will be available in very early course. Only then will we see any benefits to these new “simple” Rules.

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For More Information Contact:
David Alexander
Mobile: 07841920089
Direct Dial: 0131 516 5362
Email:dalexander@gilsongray.co.uk

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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.