Inner House clarifies use of documentary evidence in simple procedure claims

About this case:

• Citation:
  [2026] CSIH 47
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Braid

The Second Division refused an appeal by Stephanie Hughes against decree in favour of Cabot Financial UK Ltd for £3,120.02. It held that the Sheriff Appeal Court had erred in saying section 77 allowed documents not spoken to by a witness to be admitted as evidence, but concluded that the sheriff was nevertheless entitled to consider the material lodged because the relevant factual matters were not genuinely in dispute.

K. Young, instructed by Flexlaw Solicitors, appeared for Ms Hughes. Davie KC and A. Sutherland, instructed by Nolans Solicitors, appeared for Cabot. The opinion of the court was delivered by Lord Braid, sitting with the Lord Justice Clerk and Lord Malcolm.

The appeal arose from a simple procedure claim by Cabot for payment of credit card debt originally owed to Bank of Scotland and said to have been assigned to Cabot in 2016. Ms Hughes did not positively deny that she had incurred the debt, but required Cabot to prove its case. Cabot lodged a signed credit agreement, statements of account, a default notice, a redacted assignation agreement and a notice of assignation.

At the hearing the parties entered into a joint minute agreeing, among other things, that Ms Hughes had signed the credit agreement, used the card and accumulated debt, had received a letter intimating assignation and had made payments to Cabot’s agents. The other documents were not formally admitted in the joint minute.

Section 77 did not make documents self-proving

The sheriff rejected arguments concerning enforceability of the credit agreement, service of the default notice and Cabot’s title to sue and granted decree.

On appeal, the Sheriff Appeal Court held that section 77 of the 2014 Act permitted the sheriff to admit the documents even though they had not been spoken to by a witness. It described the dispute over the documents as an “evidential bourach” and said the material provided a “complete and compelling account” of the debt, default and Cabot’s entitlement to enforce it. Ms Hughes appealed to the Inner House on the sole ground that the Sheriff Appeal Court had misunderstood section 77. Her position was that the provision removed ordinary rules which could prevent otherwise relevant evidence from being admitted, but did not remove the distinct common-law requirement that the provenance of a document normally had to be proved before it became evidence.

The Inner House agreed with her on that point. Lord Braid explained that at common law the contents of a document cannot ordinarily become evidence in adversarial procedure unless spoken to by a witness or otherwise agreed. Section 77, properly construed, addressed only admissibility. It disapplied rules which prevented evidence being led on admissibility grounds, but did not abolish the separate requirement that evidence actually be led where proof was required.

The court said there was a distinction between whether proposed evidence was legally admissible and whether it had in fact been introduced into evidence. Section 77 contained no clear indication that Parliament intended to displace the common-law rule. Accordingly, “where the provenance of a document is genuinely in dispute, a witness will still be required to speak to it”. The Sheriff Appeal Court had therefore erred insofar as it held that section 77 itself permitted documents which had not been spoken to by a witness to be admitted into evidence.

Simple procedure is not ordinary proof

That conclusion did not, however, determine the appeal.

The Inner House considered the wider structure and purpose of simple procedure, which was introduced by the 2014 Act to replace small claims procedure. The policy memorandum accompanying the legislation described the new system as adopting a more “problem-solving or interventionist approach”, closer to an inquisitorial model and representing a “fundamental shift away from the adversarial approach where the parties control evidence and argument”.

The Simple Procedure Rules require parties to identify the factual matters they dispute and permit sheriffs to tailor procedure to the circumstances of the individual case. Documents and other material are ordinarily lodged before a hearing and the sheriff must identify which factual and legal matters are genuinely in dispute. Lord Braid said the repeated references in the rules to “documents and other evidence” suggested that the word evidence was being used in a non-legal sense.

The court held that a simple procedure hearing should not be treated as an ordinary proof. Rule 12.4 gives the sheriff a substantially more interventionist, “at least semi-inquisitorial”, role. “It is a mistake to describe the hearing as an evidential hearing,” Lord Braid said. “It is not. It is a hearing at which the sheriff is to decide the case.” It was for the sheriff to identify which facts were genuinely disputed and determine what evidence was required to resolve them.

The court said that a sheriff could therefore have regard to material lodged in the case even where it had not been formally spoken to by a witness. Such material was “evidence in the colloquial sense used in the Rules”. The court illustrated the distinction with the example of a claimant seeking £350 for repairs to a car and lodging a garage invoice. In ordinary procedure the invoice would not itself become evidence unless spoken to by a witness. Under simple procedure, however, the sheriff would first determine whether the fact and cost of the repairs were genuinely disputed. If they were not, the sheriff could have regard to the invoice without requiring formal proof. Only where a relevant fact was genuinely disputed would evidence require to be led to establish it.

No factual dispute requiring proof

Applying that approach, the Inner House held that the sheriff’s handling of Ms Hughes’ case could not seriously be faulted.

Ms Hughes had formally admitted that she entered into the agreement with Bank of Scotland, accumulated debt, received intimation of the assignation and made payments to Cabot’s agents. The amount of the debt was not disputed.

There was therefore no requirement for formal evidence on those matters.

The court also noted that the arguments made on Ms Hughes’ behalf proceeded on an implicit acceptance that the documents were genuine and were what they purported to be. The challenge concerned their legal effect rather than their provenance. In addition, the sheriff was entitled to infer the fact of the assignation, and therefore Cabot’s title to sue, from the assignation letter whose terms had been agreed in the joint minute.

Lord Braid said it was not unreasonable to expect parties to identify which facts relied on by their opponent were disputed. “If there is a fact which the sheriff identifies as genuinely disputed, it must be proved (presumably on a balance of probabilities) by evidence,” he said. “If facts (or documents) are not genuinely disputed, the sheriff may have regard to them in reaching a decision.” Although the Sheriff Appeal Court had therefore misinterpreted section 77, the result it reached was correct for different reasons.

The Inner House accordingly refused Ms Hughes’ appeal.