Professional practice updates - August 2015

The key features of the Court Reform (Scotland) Act 2014 will be implemented on 22 September – the start of the new legal year.

http://www.legislation.gov.uk/asp/2014/18/contents/enacted

The main effect of the reforms will be to shift substantial amounts of court business from the Court of Session to the Sheriff Courts. This is achieved by:

• A substantial increase in the threshold for cases to be heard in the Court of Session, from £5,000 to £100,000.
• Establishing a specialist Sheriff Court with a national jurisdiction – this will be in Edinburgh.
• Creating a Sheriff Appeal Court to hear many of the appeals that currently go directly to the Court of Session.
• Creation of a new judicial post - the summary sheriff - to resolve lower value civil cases such as debt cases more swiftly and efficiently, while also dealing with summary criminal cases.
• Summary Cause procedure - which includes Small Claims - will be replaced by a new Simple Procedure.
• New procedures for judicial review cases in the Court of Session, including a three-month time limit, and new procedures for appeals within the Court of Session and some appeals to the UK Supreme Court to improve efficiency.

It might be helpful to have to have links to the relevant Statutory Instruments/Acts of Sederunt.

The first two deal with the bulk of the civil courts reforms coming into force on 22 September:

http://www.legislation.gov.uk/ssi/2015/228/pdfs/ssi_20150228_en.pdf

http://www.legislation.gov.uk/ssi/2015/176/pdfs/ssi_20150176_en.pdf

The next link is to the Order conferring a national jurisdiction on Edinburgh Sheriff Court in some personal injury cases.

http://www.legislation.gov.uk/ssi/2015/213/pdfs/ssi_20150213_en.pdf

The Order details that a sheriff of the sheriffdom of Lothian and Borders sitting at Edinburgh Sheriff Court has jurisdiction throughout Scotland in three situations:

• The first is for actions of damages for, or arising from, personal injuries for claims exceeding £5,000.
• The second is for proceedings concerning an accident at work where the claim is for over £1,000.
• And the third situation is where the claim concerns an accident at work for under £1,000 but the local sheriff has certified that the importance or difficulty of the proceedings make it appropriate to transfer the proceedings to the Personal Injury Court. Cases that fall into this category should therefore first be raised in the summary cause procedures in the local sheriff courts.

The rules for the new forms of action in the sheriff court can be found here:

http://www.legislation.gov.uk/ssi/2015/227/pdfs/ssi_20150227_en.pdf

These include amendments made to the ordinary cause rules on jury trials, e-motions and active case management which closely follow equivalent provisions in the Court of Session. There is also the introduction of an equivalent procedure to that in chapter 42a of the Court of Session rules which allows for active case management in complex cases which will apply in the new personal injury court and in local sheriff courts where the amendments to the ordinary cause rules depart from current Court of Session procedure.

On 1 July 2015, the remaining provisions of the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 (“the Act”) came into force and appropriate amendments to the Society’s Rules and Guidance will be carried out in due course to reflect the new provisions.

Two recent articles in the Journal (which provide substantial useful information on the Act) can be accessed from http://www.journalonline.co.uk/Magazine/60-3/1019015.aspx and http://www.journalonline.co.uk/Magazine/60-7/1020522.aspx.

Meantime, one development which will be of considerable significance to all practitioners is the ability to “deliver” paper documents (including missives and other documents having a contractual effect) by electronic means. Section 4 of the Act provides that “traditional documents”, which are “documents written on paper, parchment or some similar tangible surface” (see Section 1A of the Requirements of Writing (Scotland) Act 1995, as substituted by Schedule 3 of the Land Registration (Scotland) Act 2012, the link to which is http://www.legislation.gov.uk/asp/2012/5/schedule/3/enacted) can be delivered by “attachment to an email” or “by fax”. Other methods of delivery are also referred to but these will be the ones most frequently used.

In terms of Section 4(4), delivery must be by a means which the intended recipient has agreed to accept, but in terms of Section 4(5) if no accepted method has been agreed or the accepted method is impracticable then delivery may be “by such means (and in such form) as is reasonable in all the circumstances”. No definition is given of what amounts to “reasonable”, but the Explanatory Notes to the Act refer to what is reasonable “viewed objectively in all the circumstances”. See http://www.legislation.gov.uk/asp/2015/4/notes/division/3/2/1.

It is also important to note the terms of Section 4(6) and 4(7) of the Act. Section 4(6) provides that although delivery by electronic means constitutes effective delivery of a traditional document, what is received by the electronic delivery is not treated as being the traditional document itself. Section 4(7) provides that the traditional document after electronic delivery to the recipient is to be held by the sender in accordance with whatever arrangements have been made by the sender and the recipient.

Therefore, in a delivery of missives situation, it would normally be agreed by the parties that the traditional document (ie hard copy) of the missive letter will be forwarded on to the recipient by the sender after the electronic delivery has taken place. In other situations, such as a lengthy commercial contract, it may be that the parties will not wish the traditional document/hard copy to be sent backwards and forwards.

If the document sent by electronic delivery is to be registered, then the executed traditional document itself will be required for registration purposes since normally a faxed or emailed copy will not be accepted for registration.

The normal procedure for the delivery of missives would therefore seem to be:

(1) Agree in advance between parties' solicitors whether delivery of missives may be by fax, or email attachment, or one of the other methods referred to in Section 4(9) of the Act;

(2) Agree in advance that on delivery of the document by electronic means, the original document (hard copy) will be forwarded on to the recipient thereafter;

(3) Proceed to carry out the electronic delivery;

(4) Check thereafter by fax receipt or email read receipt or by physically contacting the recipient solicitors, that the document has been received by them;

(5) Forward on the traditional document to the recipient solicitors as soon as possible after the electronic delivery has been carried out;

(6) If no agreement can be reached on the method of delivery then consider utilising the provisions of Section 4(5) although this may require some careful consideration.

Finally, the Explanatory Notes to the Act refer to an email attachment being by PDF file, presumably because a PDF document scanned from the original will include the signature and cannot be subject to any alteration. A “Word” document would probably not be appropriate.

The Society's Technology Sub-Committee has recently updated the Society’s guidance in relation to Electronic Communications and Scanning and Archiving Documents. The updated guidance is available in our Rules and Guidance section on the folowing pages.

Division B: Electronic Communications

Division B: Scanning and Archiving Documents

The Society's Property Law Committee has successfully persuaded the Keeper to extend the period in which she will accept a deed which does not bear a title number from 14 days to 28 days after the date of registration. This will assist solicitors particularly when obtaining discharges in respect of first registrations.

Regulation (EU) No 650/2012, known more generally as the Succession Regulation (or Brussels IV), will come into force on 17 August. Although the UK didn’t opt into the regulations, they are still of considerable relevance to UK residents and nationals who own assets in EU countries that are signatories to the legislation. The changes are being considered by the Society’s Trust and Succession Sub-Committee but solicitors with clients who are resident in EU countries should be aware of the changes and be ready to advise clients who may be affected.