Simple Procedure - Getting Better

It has now been 14 months since the Simple Procedure Rules arrived with us. There was much excitement within the Scottish Court Service when the rules came into force. The rules were said to modernise the Scottish Judicial system. They were in plain terms. They introduced forms that were easy to use.  They were designed to allow parties to deal with claims themselves.  That is, to cut out the middle men; the Solicitors.

This all sounded good at the time.  Court procedures need to be easy to follow, easy to use and inexpensive.  They also need to be quick.  So the introduction of the Simple Procedure Rules was progress.

A number of problems were quickly encountered when the rules came into force. The forms were anything but simple and easy to use. They were long, confusing and cumbersome. Different Courts were applying different levels of scrutiny to those forms. It was easy to raise an action in some Courts and almost impossible in others.

It was inevitable that there would be an initial back lash to the introduction of new rules like this. No one likes change, even lawyers. Now that the dust has settled, what worries remain?

• The forms still remain cumbersome. As a firm dealing with a high volume of Simple Procedure actions, we have got used to the idiosyncrasies of the different Courts and of the forms themselves. We now have no problems raising proceedings. The same cannot be said though of party litigants. The feedback from many is that they have tried to raise their own actions, given up and resorted to instructing Solicitors.
• The procedure itself is not quick. Invariably, if a Form of Response is lodged to a claim, an Order of the Sheriff is fixed which almost inevitably results in a Case Management Discussion being fixed. At those Case Management Discussions, either a Full Hearing (i.e. Proof) is fixed or the case is sent off to ADR. All this is taking time.
• The main selling point of the Simple Procedure Rules (the Scottish Court Service On-line Case Management System) has yet to be introduced. As a result, the paper required to raise proceedings, serve proceedings and deal with proceedings is immense. Given that the major selling point of the new rules was the introduction of the on-line access, this is simply unacceptable.

We were lucky enough at Gilson Gray to host a delegation from the Scottish Courts Service last month, to trial the new On-line Case Management System. We were excited by this development for two reasons; (1) that we were picked to trial this new system; and (2) that it must signal that its introduction was imminent.

The trial itself was impressive, albeit quick.  It was impressive because it does look like this system will be revolutionary once it is up and running. The trial was quick, however, because we were only trialling “phase 1”.  Phase 1 is likely to be introduced in the next few months, but it simply allows the user firm access to the Scottish Court’s website, to view all actions raised by it and to chart their progress.

It does not allow any interaction with the Scottish Court Service, such as a downloading or uploading of documents, forms, etc.  It also does not allow any automatic contact to be made with the Sheriff Clerk’s Office. To quote the Scottish Court Service when we met, “the system is designed to divert traffic and communication away from the Sheriff Clerk’s Office, not towards it.”

So whilst it looks as though progress is being made towards the introduction of the On-line Case Management System, I am afraid to say that it is still a year or two away. Whilst much fanfare will no doubt be made about phase 1 coming into force, it is not the On-line Case Management System that we were sold prior to the rules coming into force.

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.