Currently, cases for values up to £3,000 must be raised under the Small Claims procedure, and cases for values between £3,001 and £5,000 must be raised under the Summary Cause procedure. The Courts Reform (Scotland) Bill replaces these two procedures with one 'Simple Procedure' for all cases for values up to £5,000.
The need for change
The Report of the Scottish Civil Courts Review acknowledged that, whilst there was a continuing need for a distinct procedure for low value claims, it was unnecessary to have two different sets of procedure for cases up to £5,000. Ultimately, the SCCR advocated a flexible procedure based on a problem-solving, interventionist approach from the Sheriffs.
The Scottish Government were advised that under the Summary Cause and Small Claims procedures, Sheriffs find it difficult to help party litigants because of their duty to act as a sort of "referee". It is in the interests of justice, the efficient disposal of business in the courts and, by extension, the public purse, that judges assist party litigants to present their cases. One of the aims of the new Simple Procedure is to increase assistance to party litigants from the bench and facilitate access to justice.
Consideration and amendment
The Scottish Government had considered whether the monetary limit for the Simple Procedure should be £10,000, which is the small claims limit in England and Wales. However, they decided that because the present limits for the Summary Cause and Small Claims procedures were only set at their respective levels in January 2008, it would be premature to apply a higher limit for the new procedure.
The Scottish Civil Justice Council will draft the rules for the Simple Procedure in due course. The aim will be to make the rules as clear, straightforward and easy to understand as possible. The new approach to be adopted should permit the court to identify the issues and determine what it requires to see or hear by way of evidence or argument. This should represent a fundamental shift away from the current adversarial approach. The intention is that the Simple Procedure should be flexible enough to enable a Sheriff to assist the parties in settling the dispute whilst following the procedure that is most appropriate to the circumstances of the case.
Comment
The abolition of the Summary Cause and Small Claims procedures is a significant change to the Scottish Civil Court system. It is hoped that the new Simple Procedure will be quicker, cheaper and more convenient than the current procedures. Only time will tell if the Simple Procedure lives up to these aims.
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The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
