Background to the new rules
These new rules arise out of changes introduced under the Courts Reform (Scotland) Act 2014 which provide that a new simple procedure would be adopted to cover cases dealt with by the current small claims or summary cause procedures. Section 72 of the Courts Reform (Scotland) Act 2014 sets out the types of cases to be raised by way of simple procedure. These are:
Proceedings for payment of a sum of money not exceeding £5,000;
Actions of multiplepoinding (for example, to determine the rights of parties fund which is in dispute so that the holder of the fund is released from any claims against them) where the value of the fund or property does not exceed £5,000;
Actions of forthcoming (for example, where a person is owned money and a third party holds money on behalf of the debtor) where the value of the arrested fund or subjects does not exceed £5,000;
Actions ad factum praestandum (for example, where a court order for someone to take a particular action is sought) other than actions in which there is claimed, in addition or as an alternative, a decree for payment of a sum of money exceeding £5,000; and
proceedings for the recovery of possession of heritable or moveable property (which do not also include a claim for payment of more than £5,000).
A consultation on draft Simple Procedure Rules was carried out by the Scottish Civil Justice Council earlier in the year and some changes have been made to what was proposed in the draft rules following this.
What the new rules don't cover
The new Simple Procedure Rules will not cover all of the above types of cases. When the rules were being prepared the Scottish Civil Justice Council reached the view that it would be useful to have a different set of rules dealing with the types of cases which require a more complicated procedure. The following types of cases are therefore not covered by the new Simple Procedure Rules:
- Personal injury actions;
- Actions of multiplepoindings;
- Actions of count, reckoning and payment (for example, to compel a respondent to account to a claimant and pay sums due to them);
- Proceedings for ailment (financial support of a spouse or child);
- Actions for the recovery of heritable property; and
- Actions of forthcoming (by a person who is owed money against a third party).
A further set of rules, which will be known as the Simple Procedure (Special Claims) Rules, will be deal with these types of cases. There will separate consultation on these rules and they should come into force in 2017.
What is changing
The new Simple Procedure Rules aim to make the procedure faster, inexpensive and also more accessible to lay users. As a result they look very different to the current Small Claims and Summary Cause rules.
Principles with which parties should comply are incorporated into the rules, much of the previous terminology used is changed with the intention of simplifying the rules, for example, rather than referring to pursuers and defenders the new rules refer to claimants and respondents and there is even a flowchart to explain the options in relation to defending a claim to respondent. A completely new set of forms are introduced to accompany the rules.
The rules also allow the court to accept the submission of documents electronically and the forms will also be made available in an electronic format to enable their use in the new online portal which is being developed by the Scottish Courts and Tribunal Service. Full details of the new portal have not yet been released but it has been confirmed that parties will be able to start actions, submit documents, pay fees and track the progress of cases online.
As noted above, the new rules will come into force on 28 November 2016 which does give a little time for steps to be taken to implement the changes. However, steps will need to be taken by all firms who carry out work in this area to get up to speed with the substantial changes which the rules bring in advance of this.
If you have any questions about the Scottish court reforms please contact Helen Bain or your usual Morton Fraser litigation contact.