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The Scottish Courts and Tribunal Service (SCTS) launch the new Simple Procedure for payment claims of up to £5,000 on 28th November 2016.  This will replace and streamline the two current and separate procedures of Small Claims for debts up to £3,000 and Summary Cause for debts over £3,000 but under £5,001.

New rules set out how a claim will be made, detailing the forms to be completed and the procedures that must be followed. Claims will still be made on paper for now but it is anticipated the new Civil Online portal, allowing forms to be submitted electronically, will be introduced in early 2017.  

What else has changed?

A considerable amount of consultation has been undertaken to develop a new procedure which provides a “swift, inexpensive and informal process”. One of the first changes to note is the language and structure of the rules. There is no more ‘legalese’ and the chapters are in a question and answer format designed to be clear and concise. This is to assist party litigants navigate their way through what can be a daunting and complicated process.

The rules also bring a strong emphasis on negotiation in disputed cases and the sheriff can make direct orders to refer parties to alternative dispute resolution. The new claim forms ask the parties (now called claimant and respondent) to state what steps they have taken to reach a negotiated settlement. Clearly, the message is that all reasonable attempts at negotiation should be made before a case is heard in an actual courtroom.

In the spirit of a swift and informal process the sheriff has new and extensive powers to “do anything or give any order considered necessary to decide the case” including to “decide a case without a hearing”. The sheriff will be able to dismiss a claim if it “obviously has no real prospects of success”, if it “obviously will not succeed because it is incompetent” or if a response made to dispute a claim “obviously will not succeed because it is not competent”. If used, this power could prevent delay where one side has no real hope of success, although there would still be the possibility of an appeal.

There will also be changes in who can represent a party. Currently businesses such as limited companies and partnerships have to instruct a solicitor to represent them. From the 28th November, however, they can ask the court for permission to have lay representation. For example a partner, director or company secretary can ask for permission to make the claim and do all that is necessary to advance it under the new procedure. In doing so, the Court must first be satisfied that the business is unable to meet the cost of legal representation, that the person applying is suitable and that to allow lay representation is in the interests of justice. Careful consideration of the duties to the court and requirements of the rules will be necessary before any application along these lines is made - perhaps an obvious statement when you want to ensure the best possible outcome for your claim. The court can make an award of expenses against the company and the lay person if they have acted unreasonably in the proceedings.

Will the new procedure be swift, inexpensive and informal?
 

The requirements for detailed information in the claim and response and the power to dismiss stresses the importance of getting everything right at the outset. Where there is a genuine dispute the emphasis on negotiation is intended encourage parties to settle without the need for a court hearing. Court fees, in an effort to cover costs to the public purse, are increasing although remain phased between the levels of £1,000, £2,500 and £5,000 as before.

As with anything new, there will be a settling in period. How the rules are applied in practice is something we will have to wait and see. Most debt recovery is of the ‘won’t pay/can’t pay’ variety and is not disputed so perhaps there will be little change in real terms.

 

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