Scotland’s civil courts are currently going through a period of historic reform aimed at modernising the civil justice system to make it more efficient and less expensive. As part of this on-going process, new simple procedure rules were recently published that will replace the current small claims procedure for cases that value £5,000 or less.

Here we provide a brief overview of the background to these reforms and the new simple procedure rules. We also take a look at the Scottish Civil Justice Council’s recently published Annual Report, highlighting some of the other key changes that have been and are taking place. For more information, please call our specialist litigators.

Background to the Scots Courts Reforms

In 2007, the Scottish Government commissioned the Scottish Civil Courts Review. Led by Lord Gill, the outcome of the review was a raft of recommendations aimed at making substantial changes to modernise and improve the structure and operation of the civil courts.

Many of these recommendations were taken forward in the Courts Reform (Scotland) Act 2014 (see our previous post on the Bill here), including freeing up the Court of Session to only hear the most challenging civil cases by increasing the case value threshold for the sheriff court from £5,000 to £150,000, and a new specialist personal injury court (see our previous post on the new court here).

The Scottish Civil Justice Council (SCJC), established in 2013 under the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013, is responsible for taking forward and implementing these reforms. Initially set up to keep the civil justice system under review and draft new civil procedural rules, the SCJC’s powers have been extended to cover the review of the practice and procedure followed in fatal accidents and sudden deaths inquiries. In regard to its responsibility to draft civil procedure rules, the most recent relate to a new simple procedure that comes into force in November.

The New Simple Procedure Rules

The new simple procedure rules (available here) are aimed at making the court process and rules governing low value claims (not exceeding £5,000) more accessible, flexible and efficient. This includes using plain language and a flowchart to make the rules more intelligible. They come into effect at the end of November and will apply to some cases currently subject to the small claims and summary cause procedure in the sheriff court.

Crucially, cases that require a more complex procedure, known as ‘special claims’, will not be subject to these rules. Instead, personal injury actions, claims for financial provision and maintenance on divorce (also known as aliment), actions for recovering heritable property and other specific cases will be subject to Simple Procedure (Special Claims) Rules. Following consultation, these rules are expected to come into force next year. As ever, we are watching developments closely.

In regard to the new simple procedure rules, key changes include:

• Changing terminology, such as replacing the terms: ‘pursuer’ with ‘claimant’; ‘defender’ with ‘respondent’; and, ‘sist’ with ‘pause’
• Making it clear that a sheriff has the power to dismiss incompetent cases at any time
• A new set of forms, which can be accessed and submitted electronically
• A new online Integrated Case Management System, details of which are forthcoming from the Scottish Courts and Tribunals Service (SCTS), that will allow parties to commence actions, submit documents, track the progress of the claim and pay fees

SCJC Annual Report 2015/16

Also this month, the SCJC published its third Annual Report 2015/16 (available here) detailing the changes to, and developments in, the Scottish civil justice system over the past year. In the foreword, Lord President and Chairman of the SCJC, Lord Carloway, said:

“During the course of the past year, the Council has supported historic reform to civil justice in Scotland and taken significant steps towards delivering a modernised and efficient system. The Council has assumed a number of new responsibilities to support the substantial changes which are re-shaping the justice landscape in Scotland.”

These include being responsible for the rules raising the privative limit and relating to judicial review that are now in force, as well as those that created the Scottish Appeal Court (SAC) and a specialist personal injury court with civil jury trials. Progress is also reported in respect of creating compulsory pre-action protocols for personal injury actions, which may be applied more widely in the future.

A policy discussion paper is also being drafted in respect of the recommendations made in the Taylor Review of Expenses and Funding of Civil Litigation in Scotland (published in 2013), and options in regard to draft fees rules are expected to be reported on this summer. In regard to creating a new tribunal structure for devolved matters, work is expected to commence over the next year.

As mentioned above, the SCJC has also seen its powers extended to include reviewing the practice and procedure followed in fatal accident and sudden death inquiry proceedings. A working group has been set up to take things forward, including making proposals for draft inquiry procedure rules.

Expert Litigators in Scotland

Our litigation team, headed by partner Diane Cairney, help resolve a broad range of disputes with skilful negotiation and straightforward, clear advice. Where court action is required, we are pro-active and determined in our approach to securing effective solutions. We foster close working relationships and respond to our clients’ individual needs, whether that is in relation to a complex personal injury claim or a high value commercial dispute. Whatever issue you may be facing, please contact us to find out how we can help.