SCJC sets out civil procedure vision in new report

An “ambitious and innovative” rewriting of most of the procedure rules that apply across Scotland's civil courts is being planned by the Scottish Civil Justice Council.

A new report published by the Council sets out the principles and features of the rules agreed to date, and as the next stage the Council is embarking on a public engagement exercise to find out what expectations they have of what court services should look like.

Points covered by The New Civil Procedure Rules – First Report include:

• The rewrite should cover the Court of Session Rules and all sheriff court rules with a direct equivalent in the Court of Session.
• At the beginning the rules should set out a statement of principle setting out the doing of substantial justice as the core consideration, which includes having regard to efficiency and proportionate cost. Judges should to take account of this in case management and parties, and their representatives, should be obliged to assist them in respecting the statement of principle.
• The historic distinction between summons and petition procedure should end.
• All remedies should be available under both the fast-track and case-managed procedures.
• The rules should encourage concise and focused pleading, with a power for the judge to order adjustment, narrowing, clarification and expansion of pleadings.
• Parties should have greater input to the form of case management hearings as well as the outcome.
• In addition to the existing procedures for recovery of evidence, the court should be entitled to order the disclosure of the existence and nature of documents relating to the action, with authority to recover specific documents, at any stage in the proceedings.
• The rules should provide a set of strong case management powers for the judge concerning the scope of evidence as well as default provision on the agreement of evidence and particular methods for experts to give their evidence.
• The rules “should be ambitious and innovative in matters of structure, layout and presentation”, with a drafting focus on usability and readability. A standard approach to the drafting of elements such as time limits should be adopted, and set out in a style guide for court rules. There is also an opportunity to introduce greater consistency to the terminology used in court practice.
• Electronic interaction with the courts should be the default, except where the court orders otherwise. The SCJC will consider the introduction of online, shared, editable pleadings in the new rules.

Over the next year, the Council will focus on the development of a detailed model for ordinary procedure, both defended and undefended, in the Court of Session and sheriff court.

The work will be divided into six streams:

• commencement and initial case management
• applications and motions
• decrees, extracts and enforcement
• evidence, proof and hearings
• access to justice
• expenses and taxation.

This summer's tour, which will cover all six of the court areas in Scotland, will include presentations, discussion and listening exercises.

In the foreword to the report, the chair of the Council, the Lord President, Lord Carloway, writes: “The public’s changed expectations of what services should look like, and how they should work, are key to understanding what fairness will mean in 2020. The public has become used to services which are increasingly swift and responsive, automated, available anywhere and accessible in a variety of different ways.”

He concludes: “This is an opportunity to reshape civil justice and the Scottish Civil Justice Council needs to know what you think about those topics identified as forming the focus of our next year of work. The task is an ambitious but a necessary one: to build a civil justice system which makes more sense to someone born at the turn of the millennium than to someone born in the previous two centuries.”

Contact the Council at scjc@scotcourts.gov.uk with your queries and views.