More preparation for practitioners and sheriffs

Concluding his guide to the news summary cause rules, Sheriff Alastair Stewart looks at actions of damages for personal injury and small claims

Third party procedure

Under the new rules a form of third party procedure is made competent in summary causes. The rules governing this are modelled on those in the Ordinary Cause Rules. However, an application for service of a third party notice normally requires to be made at the time when the defender lodges a form of response. It can be made later only with leave of the sheriff on cause shown. This is understood to be with a view to focusing all of the issues in the case at the initial hearing.

Decree by default

Much frustration has been caused by the provision of the present rule 28 which requires the fixing of a peremptory diet if a party is in default. The new rules are more robust. The sheriff may now grant decree by default if a party fails to appear at a hearing (other than the hearing of an incidental application) where required to do so. He is not obliged to grant decree but has a discretion in the matter. In the case of a failure to implement an order of the court after a proof has been fixed, the sheriff has again a discretion whether or not to grant decree by default, but in this case he must give the offending party an opportunity to be heard.

Proof

The provisions in the new rules for proof are relatively little changed from those in the present rules. Perhaps the most significant innovation is that the sheriff is given power, either of his own accord or on the motion of a party, to order that proof on liability or some other specified issue should be heard separately from proof on any other issue. This is likely to be of particular importance in actions of damages for personal injury.

The new rules also contain provisions for an exchange of lists of witnesses similar to those in the Ordinary Cause Rules.

Regarding productions there is a new rule providing that a party lodging productions must send a list thereof to every other party and must also send a copy of each production to every other party unless it is not practicable to do so. It is understood that these disclosure provisions are intended to encourage and facilitate settlement. A further new provision is that a copy of each production for the use of the sheriff must be lodged with the sheriff clerk not later than 48 hours before the diet of proof.

Actions with special rules

It is not intended to go into any detail about actions with special rules other than actions of damages for personal injury which are dealt with below.

Multiplepoindings and actions of count reckoning and payment often appear to cause dread in the heart of the practitioner (and of some sheriffs too), but the summary cause rules governing them are clearly expressed and, if followed accurately, should cause no difficulty.

The rules for actions for recovery of possession of heritable property are little changed. It may be of some importance to note that the requirement for a written defence in the form of response applies to such actions as well as any other. Those advising defenders should bear in mind that a defence stated as “unreasonable to grant decree of ejection” without further specification is unlikely to meet with a sympathetic reception by the sheriff.

Actions of damages for personal injury

In the case of an action of damages for personal injury (or in respect of the death of a person from personal injury) the actual form of the statement of claim is specified. It is set out in very much the same way as would be the condescendence in a standard reparation ordinary cause. It is specifically provided that the statement of claim must contain a concise statement of the grounds of action and the facts relied upon to establish the claim. The pursuer’s date of birth and, where applicable, his National Insurance number, must be stated. In the paragraph of the statement of claim dealing with any treatment received by the pursuer (or the deceased in the case of a death claim) the name of every medical practitioner by whom and every hospital or other institution in which such treatment was given must be stated.

With the summons must be lodged a statement of valuation of claim. The form for this provides for different heads of damages being stated together with details of what interest is being claimed. The statement must also include a list of supporting documents, and there must be lodged along with the summons all medical reports available to the pursuer on which he may rely. If no medical report is lodged the pursuer must specifically state that there is no such report.

The summons may include a specification of documents for which a form is provided in the rules. This form includes the standard documents called for in a reparation action.

The copy summons served on the defender must be accompanied by a copy of the statement of valuation of claim. The copy summons contains a different form of response from that in other actions for payment. This form of response gives the defender the opportunity to answer the pursuer’s claim in detail, including the facts of the case and the heads of damage.

If the defender lodges a form of response the action continues as described above for other summary causes. If the summons contains a specification of documents, the sheriff clerk makes an order granting commission and diligence when the form of response is lodged. If the defender objects to the specification he must lodge an incidental application to that effect before the return day. This will then be determined on the calling date.

Other rules applying to actions of damages for personal injuries (e.g. provisional damages and intimation to connected persons) are similar to those for ordinary causes.

SMALL CLAIMS

The new Small Claim Rules provide for less of a departure from the present procedures than is the case with summary causes. The most notable difference is that there is only one body of rules for all small claims and not, as under the present provisions, separate rules for actions for payment of money only and for other actions. It is also implicit in the new rules that a case should be disposed of at the first hearing if at all possible.

As at present a party may be represented by an authorised lay representative throughout the whole proceedings. It is clearly envisaged in the rules that in many, if not most, small claims, parties will not be represented by any legally trained person.

Summons, copy summons, claim, statement of claim and form of response

The new small claim provisions for the summons, claim and statement of claim are broadly similar to those for summary causes and call for no comment.

There are two forms of copy summons which may be served on a defender: one for actions for payment of money in which the defender may apply for a time to pay direction or time order; and one for all other actions.

As in the case of a summary cause, the copy summons contains a form of response. However, the form of response does not provide that a defender must state his defence in writing. Instead, it provides that he should state an intention to defend the action, in which case he must return the form of response to the sheriff clerk by the return day and must then attend court on the calling date.

The new small claim rules provide that a defender may state a counterclaim, and this is of course a significant change from the existing procedure. A defender who wishes to state a counterclaim may do so either in writing in the form of response or orally at the hearing of the case on the calling date.

Undefended action

The small claim provisions for undefended actions are broadly similar to those for summary causes.

Recall of decree
Again the small claim provisions are essentially the same as those for summary causes.

The Hearing
If a defender lodges a form of response the case must call in court for a hearing on the calling date.

The rules provide that any hearing is to be conducted “as informally as the circumstances of the claim permit”. The procedure to be adopted is such as the sheriff considers to be fair, best suited to clarification and determination of the issues before him, and which gives each party a sufficient opportunity to present his case. This is in conformity with the policy of making small claim procedures as accessible and user-friendly as possible to those who are not legally qualified.

 As in the case of a summary cause, the sheriff is required first to ascertain the factual and legal basis of the claim and any defence and to seek to negotiate a settlement between the parties. If that attempt fails he must identify and note on the summons the disputed issues of fact and law and any facts which are agreed. He should then, if possible at that stage, reach a decision on the basis of the information before him. This procedure will almost certainly have implications for the amount of time which will require to be provided in the court programme for the initial hearing in a disputed small claim.

If the dispute cannot be resolved without the leading of evidence the sheriff must fix a further hearing which is somewhat confusingly referred to in the rules as a “hearing on evidence” rather than a proof. In that event, the sheriff may indicate what matters require to be proved and give guidance to the parties on the nature of the evidence to be led.

Third party procedure
There is no provision in the Small Claim Rules for third party procedure.

Decree by default
The small claim provisions for decree by default are similar to those in summary causes.

Hearing on evidence (proof)
Before he begins to hear evidence the sheriff must explain to the parties the form of procedure which he intends to adopt, bearing in mind the circumstances of each party and whether (and to what extent) a party is represented. He must, if he considers it necessary for the fair conduct of the proceedings, explain any legal terms or expressions which are used.

Evidence will normally be given on oath or affirmation, but the sheriff may dispense with that requirement if “it appears reasonable to do so”. The rules give no guidance as to the circumstances in which such a dispensation might be granted.

The rules specifically provide that, in order to assist resolution of the disputed issues of fact, a sheriff may himself put questions to parties and witnesses. This is simply giving formal recognition to a practice which many sheriffs have adopted since the introduction of small claims.

The Small Claim Rules, unlike the Summary Cause Rules, make no specific provision for the sheriff to hear submissions from parties at the conclusion of the evidence. In practice, if parties are legally represented it is probable that submissions will be allowed – indeed encouraged. In the absence of legal representation, a different view may be taken.

CONCLUSION
As has, I hope, been demonstrated, the new rules, especially those for summary causes, contain many innovations, most of them improvements on the existing provisions. What is reasonably clear is that the new rules will require a greater amount of advanced preparation by the practitioner than under the present rules, especially in the case of summary cause actions of damages for personal injury.

The new rules also envisage the sheriff having to do more preparation before a summary cause court. It is probable that a good deal more time will have to be spent with each defended action on the calling date than is the case at present. The implications for court programming, at least in the busier courts, may be quite significant.

The Judicial Studies Committee is taking steps to ensure that sheriffs will receive training in the operation of the new rules. It is to be hoped that the Law Society and local faculties will take similar steps for solicitors. I have no doubt that organisations such as the Citizens Advice Bureaux will have training sessions for their volunteers who are likely to act as authorised lay representatives. Unfortunately, similar steps cannot be taken for party litigants, and they, with the new procedures as with the present, will have to continue to undergo in-service training from the sheriff as the case proceeds! However, updated versions of the information leaflets for users of both procedures are to be published, which will no doubt be of considerable assistance.