Andrew Foyle, partner and solicitor advocate at Shoosmiths, reflects on the simple procedure rules introduced over a year ago.
How time flies!
‘The Simple Procedure Rules’ were brought into force on 28th November 2016 with the aim of making litigation for all claims below £5000 in value more accessible to laypeople. They aimed to encourage the use of mediation and negotiation in the resolution of such disputes.
There are a number of positive aspects to the rules:
- the abolition of certain legal terms in favour of plain English is to be welcomed (whilst many of us in practice were reluctant to lose our pursuers, defenders and decrees, the terms claimant, respondent and decision are certainly better understood by the general population).
- a focus on negotiation and alternative dispute resolution as a means to take such small disputes out of court, and render court action a last resort.
- A more proactive approach by the judiciary to disputed claims with the aim of streamlining the procedure.
A year after its implementation, however, it is fair to say that the rules still require time to bed down and achieve a consistency of interpretation. For example, the information that courts require at the commencement of a claim can vary widely from court to court.
For the litigation team at Shoosmiths in Edinburgh, our experience is that the rules have – in general – resulted in an increase in both paperwork and court hearings over the previous rules. The rules’ noble aim of encouraging ADR and negotiated settlement has been hampered by the limited number of ADR facilities available at a cost effective price, whilst the more pro-active role of the sheriff has resulted in hearings being fixed even in undefended actions in order to discuss matters. This does not appear to have been the intention behind the rules.
Moreover, in our experience the new forms for the commencement and response to an action have caused confusion rather than clarity for many party litigants. They are much longer, with many more boxes to be completed and with far more text to read. Indeed it is not until page 6 of the form that it becomes apparent that a claim has been raised against you. For that reason we have had several respondents call us who are simply unaware that what they have received is a court action.
We understand that the Scottish Civil Justice Council intend to examine the rules during 2018. It may transpire that some of the teething issues are ironed out during that process and some of the undoubted positives of the rules are brought to the forefront.