19 December 2017

This time last year, the Simple Procedure replaced the Small Claims and Summary Cause Procedures in the Sheriff Court for actions seeking payment of sums up to £5,000 or where specific implement is sought.

At that time, David Young published an article explaining the basics of the new procedure. One year later, it is clear that Simple Procedure is, in some respects, a different beast to its predecessors. 

Michael Byrne, Senior Solicitor

The Simple Procedure Rules are designed to be much more accessible to party litigants, utilising a “question and answer” format. In the Claim and Response Forms, much effort is expended in explaining how they should be completed.

The Simple Procedure Rules provide Sheriffs with significantly greater powers than the Small Claims and Summary Cause Rules. Rule 1.8 provides that the Sheriff may, among other things, “do anything or give any order considered necessary to decide the case”. The Sheriff is empowered to set and alter deadlines, time periods, form, location and conduct of Case Management Discussions or Hearings.

This wide-ranging authority allows Sheriffs to approach Simple Procedure with a great deal more flexibility than under the previous procedures, or indeed under the Ordinary Cause Rules, and it appears to be the case that Sheriffs across Scotland are embracing this flexible approach. From Aberdeen to Hamilton, there have been instances of Sheriffs assigning Hearings on purely legal matters, akin to Debate hearings encountered in Ordinary Cause actions where the sums at stake exceed £5000.

This allows cases which turn on legal issues to be dealt with on a purely legal basis. Previously, under the Small Claims or Summary Cause Rules, witnesses would require to be led and evidence heard, before legal issues could be considered by the Court. Therefore, this new regime can lead to swifter, less costly resolutions for cases where the facts may be straightforward but complex legal matters are in dispute.

Whilst the change in the Rules has given rise to such flexibility, parties should be aware that the position on expenses in Simple Procedure remains broadly in line with that of Small Claims and Summary Cause, with the successful party’s expenses generally being restricted to:

• nil if the value of the claim is £200 or less,
• £150 if the value of the claim is between £200 and £1,500 and 
• 10% of the value of the claim for claims between £1,500 and £3,000.

That said, there still remains the prospect of expenses being uplifted. Whilst not exactly commonplace under the previous rules, there was statutory provision for an uplift of expenses, should the circumstances justify doing so (S.36B of the Sheriff Courts (Scotland) Act 1971). That provision has by and large been replicated by section 81 of the Courts Reform (Scotland) Act 2014, which empowers a Sheriff to remove the cap on expenses in Simple Procedure cases in specific circumstances, such as when the parties behave unreasonably.

In conclusion, the Simple Procedure has heralded an interesting new dawn in the civil court system and, in principle, is more forgiving to parties unfamiliar with the Court process. However, it is not a licence for parties to be remiss in their approach. The Court will still looks critically upon parties who act unreasonably in the course of a Simple Procedure action, and possibly make that displeasure known through an uplift of expenses or dismissal for non-conformity with the rules. Therefore, there is still a great deal of value that a solicitor can add to litigating under the Simple Procedure Rules.

Contact: Michael Byrne, Senior Solicitor  mby@bto.co.uk T: 0141 221 8012