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Two years of Simple Procedure: It’s been a complicated time

Two years of Simple Procedure: It’s been a complicated time

Andrew Smith

The Simple Procedure Rules recently celebrated its second birthday. The intervening period has been interesting for the courts, practitioners and lay persons alike! It was heralded as a radical move toward a modern 21st century court process. As with most radical transformations, there have however been some teething problems.

The Scottish Civil Justice Council consulted on the Rules during summer 2018 and recently published a summary of its responses. The consultation sought to gather opinion on how the rules were working in practice.


What is the experience so far?

The responses were mixed. Some positive innovations in the rules were identified but there were a number of areas in which it was felt reform was needed.
Burness Paull have both raised and defended a large number of Simple Procedure actions over the last two years. A number of these have proceeded to final hearings. Our experience in these cases accords with the general tone of the views expressed by others in the consultation.  Essentially, the rules do work better than the old Small Claim rules but there is room for further improvement.


Our thoughts so far

To recap, the Simple Procedure was designed with the aim of creating a speedy, inexpensive and informal way to resolving disputes where the monetary value does not exceed £5,000.

Our experience is that the role of the Summary Sheriffs presiding over Simple Procedure actions is key in it achieving its aims. Sheriffs are given a huge decree of latitude to make decisions as to how a case is conducted in order promote the Simple Procedure aims.

In one recent case, the Sheriff fixed a final hearing within 6 weeks of the Respondent lodging its response to the claim form. The effect was an extremely quick resolution. Such speed would not have been possible under the former rules.

It is difficult however to ensure that a case proceeds quickly, whilst also being inexpensive and informal. Resolving disputes cheaply is meant to be achieved by encouraging early settlement and by the use of ADR. Fixing a final hearing early on in an action may focus parties minds in terms of settlement but it may not be the most cost effective way of encouraging out of course resolution.  It can force parties to focus their efforts on hearing preparation, incurring the associated cost, rather than on exploring ADR. There is therefore a balance to be struck between progressing cases quickly and allowing parties an opportunity to negotiate a settlement after an action has been raised.

The consultation responses highlighted a number of innovative features in Simple Procedure consistent with its aims. This includes the use of “Civil Online”, an online management system that should shortly allow parties to commence action by lodging claim forms electronically. Civil Online has suffered from some implementation issues but it is starting to become the useful platform it was meant to be.


The future

In order to achieve its aims more fully, we believe it is important that the courts embrace modern technology fully. Case Management Discussions should be held by video call more regularly. Civil Online should evolve to allow evidence to be lodged electronically.

There is still so much further Simple Procedure can go to be the modern 21st century court process. It ought to shine the way for reforms to other court procedures. If successful in doing so it will likely expedite those reforms. Effective Simple Procedure is therefore in everyone’s interests, not only those who regularly deal with low value claims.


Next steps

The University of Glasgow has been commissioned by the Scottish Civil Justice Council to carry out research into the accessibility of Simple Procedure for individuals without lawyers.

The Access to Justice Committee of the Scottish Civil Justice Council will consider the consultation responses together with the University of Glasgow’s response and is expected to issue its recommendation for change later this year. The consultation response arms the committee with the information it needs to help turn the system into what it should really be.

by Andrew Smith

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