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The small claims/summary cause procedure is to be replaced by the new Simple Procedure in Scotland

On 28 November 2016 the Simple Procedure comes into force in all sheriff courts in Scotland.  This replaces the small claims/summary cause procedure for cases which have a value of £5,000 or less in Scotland.

So what are the key changes?

Terminology

The new Simple procedure will see  change in terminology, as follows: 

Old

New

Pursuer

Claimant

Defender

Respondent

Court Action

Claim Form

Sist

Pause

Charge for Payment of Money

Charge to Pay

Decree

Decision

Incidental Application

Application


Online Portal

The court is rolling out an online portal named civil online.  This shall aid the process of submitting and tracking cases.  This is due to be introduced in early 2017.

Claim Form

A court action shall now be raised by completion of a claim form.   The form is set out in a series of self-explanatory questions.  The form requires the claimant to provide information on what steps have been taken to resolve the dispute.  There is also a possibility of including a list of witnesses when the claim is raised. 

Timescales  

Once a claim has been lodged the court will issue a timetable which shall provide two dates;

  • the last date for service of the claim; and
  • the last date for a response to the claim. 

These dates must be complied with. If a response is not received by the court then the Claimant sends an application for a decision to the court. We anticipate that in cases where there is no response then the court will issue a decision awarding the sum sought in the claim form.

Disputed Claims

If a response is sent to the court then the Sheriff must consider the case and issue the first written orders. There is no longer a first calling of the hearing in court. The written orders that can be issued are:

  • Refer parties to Alternative Dispute Resolution (ADR)  such as mediation
  • Case Management Discussions - informal hearings which could be carried out in court or via other methods such as conference call.
  • Hearings -   for parties to be heard where evidence may be led
  • Indications that a decision is being made without further process i.e. without a hearing taking place
  • Dismissals or decisions on  a case - if the Sheriff is of the view that the claim/defence is not going to succeed 

It is no longer competent for a counterclaim to be lodged in response to a claim.

The Decision and enforcement

If a claim is successful the court will issue the decision.  The decision can then be enforced.  Enforcement of a decision cannot be made until 28 days following the decision being sent. 

The enforcement must commence with a charge to pay being formally served.   The purpose of formally serving the charge to pay is to give one last chance for payment of the sum of money. 

Following the expiry of a charge to pay, which remains at fourteen days, further enforcement can proceed in the usual way.

Below is a flow chart detailing how the new procedure shall operate

Summary

The new rules focus on the quick resolution of claims under £5,000 and encourage both the court and all parties to adopt a more proactive approach throughout. However it remains to be seen whether in practice these objectives will be achieved.

Should you wish any further information or a discussion on this please do not hesitate to contact us. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.


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