Opinion: Ayla Iridag

In February the Scottish Civil Justice Council launched a consultation as part of its review of Simple Procedure Rules, ahead of their extension to special causes such as personal injury proceedings.

The rules came into force in November 2016, replacing small claims and summary cause procedure for certain cases up to the value of £5,000. Their purpose was to provide a speedy, inexpensive and informal way to resolve disputes. Five key principles enshrined in the rules included resolving cases as quickly as possible, at the least expense to parties and the courts; as informal an approach by the court as appropriate, taking into account the nature of the dispute; and parties being encouraged to settle disputes by negotiation or alternative dispute resolution at any stage of a case.

As with any big change, parties, representatives and the courts are still getting to grips with the rules, and the approach taken across the country is not as consistent as it could be. Some courts have seen an opportunity to modernise, for example by holding telephone case management discussions, a welcome advance. Others, however, still look to the Small Claims Rules for guidance on interpretation.

It is understandable that where rules are worded for the lay person and therefore arguably more open to interpretation, inconsistencies will appear. I hope that by gathering opinions, experiences and recommendations from across the country clarification will be provided to achieve a more consistent approach.

Generally, I suggest the main issues for solicitors arise where particular consideration has been given to party litigants. The forms and procedures are not fit for volume litigation. The procedure is very paper-heavy, and many firms’ systems are not designed for the number of different forms simple procedure has introduced.

As a solicitor who acts predominantly for respondents, I think one area was overlooked with the new rules. The introduction of simple procedure was the prime opportunity to overhaul the rules on capped expenses. The courts have confirmed that, in line with the approach in small claims, the cap will not apply where the case settles before proof, regardless of whether the only defence is on quantum and the matter settles for less than the sum sued for. As it stands, where liability is admitted respondents might be discouraged from settlement for this reason. Running a case to an evidential hearing is often cheaper than settling where the sum sued for is less than £3,000. This is contrary to the principle which encourages negotiation and settlement. It is hoped this issue will be addressed, particularly before the rules are rolled out to cover personal injury actions.

But it’s not all doom and gloom. Cases are definitely resolving in much shorter timescales than under summary cause. Courts have been more flexible about the way in which evidence is obtained. Sheriffs are taking a more interventionist approach to ensure that matters are dealt with expeditiously, and making clear and relevant orders to narrow the issues in dispute, resulting in shorter evidential hearings. Case management discussions have also helped focus parties’ minds at an early stage, and sheriffs are being proactive in their approach to decision-making at the outset of actions.

The Special Causes Rules are eagerly awaited, but it is hoped that the consultation responses will be considered and a few specific changes made. As a litigator who generally deals with personal injuries actions, it is difficult to imagine how their management will fit with Simple Procedure Rules. They will require the same level of management with regard to valuations and productions as under summary cause, and likely also some sort of adjustment period. However, case management discussions might be a useful aspect of the rules that helps to focus matters: at present, often the only time the case calls before the sheriff is for proof. It may be that these replace the pre-proof conference, which only takes place between parties, without judicial intervention, and often is not as effective as it could be.

With the new case tracker we are now one step closer to a fully functioning online portal for simple procedure claims. That said, the system is slow to update after documents have been lodged and in the majority of cases it is still quicker to phone the sheriff clerk for an update.

Simple procedure marks the start of a shift towards a more focused, speedy and cost-effective process for all levels and types of claims. I for one will be interested to see the Council’s response to the consultation, and the rules for special claims.