In the first of a series leading up to the new rules which come into force in June, Sheriff Alastair L Stewart guides practitioners through a typical summary cause action
The new rules
The two Acts of Sederunt introducing new rules for summary causes and small claims respectively have recently been approved by the Court of Session. The new rules will come into force on 10 June 2002 and will apply to all actions commenced on and after that date. Actions commenced before that date will continue to be subject to the existing rules. Although many provisions in the new rules are virtually identical to those of the present rules, there are many significant differences, especially in the case of summary causes. This article will give an outline of the new procedures and draw attention to the most important changes from the present rules. It is not in any way intended to be comprehensive. I have avoided referring to the specific numbered rules as this would result in the article becoming very cluttered with footnotes. I hope, however, that it will provide sufficient information to enable practitioners and others to grasp the essentials of the new rules.
A very welcome change from the format of the existing rules for summary causes and small claims is that each set of new rules is entirely self-contained. There is no cross-reference to the Ordinary Cause Rules or, in the case of the Small Claim Rules, to the Summary Cause Rules.
The rules themselves are contained in the first Schedule to each Act of Sederunt. Appendix 1 to each Schedule contains the forms referred to in the rules. Appendix 2 to each Schedule consists of a glossary of legal terms with the caveat that “it is not to be taken as giving those expressions any meaning which they do not have in law generally”. Schedule 2 in each case contains the list of statutory instruments revoked by the respective Acts of Sederunt.
Proposed changes in jurisdictional limits and expenses
I understand that the Scottish Executive intended to introduce changes to the jurisdictional bases for the two forms of action, especially with regard to the financial limits, at the same time as the new rules. However, at the time of writing, the Orders by which these changes are to be made have not yet been approved by the Parliament. If they do not come into force at the same time as the new rules, the present jurisdictional limits will continue to operate until the Orders have been passed.
The proposed changes in the jurisdictional limits are that in general terms an action where the sum sued for exceeds £1,500 but does not exceed £5,000 must be brought as a summary cause, and an action where the sum sued for is £1,500 or less must be brought as a small claim. There are, however, certain exceptions to this rule. The most important, which is a new provision, is that an action of damages for personal injury must be brought as a summary cause even though the sum sued for is less than £1,500. The other exceptions, which apply at present, are that actions of damages for defamation and actions of aliment and interim aliment are not competent as small claims and must be brought as summary causes. Otherwise, the categories of case which must be brought as a summary cause or a small claim remain unchanged.
There is also a proposed change in the provisions for expenses in small claims. As at present, there will normally be no award of expenses in a defended small claim whose value does not exceed £200. However, if the value of the claim is between £200 and £1,000 the maximum amount of expenses which may be awarded is £100. If the value of the claim exceeds £1,000 the maximum award of expenses is not more than 10% of the value of the claim.
There are no changes in the rules for representation in summary causes. Thus an authorised lay representative may still act for a party only in the more formal parts of the proceedings.
As under the present provisions there are special rules applicable to certain types of action. These actions are: multiplepoindings; furthcomings; actions of count, reckoning and payment; actions for recovery of possession of heritable property; actions of sequestration for rent; actions of aliment; actions under the Child Support Act 1991; and actions of damages for personal injury. The new rules for most of these are broadly similar to the existing rules. The most important innovation is in respect of actions of damages for personal injury, and these will be described in some detail below.
It is notable that, differing from the present rules, the new rules contain no special provisions relating to actions for payment of money (other than actions of damages for personal injury). No doubt this is because the general rules applying to the typical summary cause are entirely appropriate for an action for payment, and no special rules are therefore required.
The following paragraphs describe the procedure in such a typical case.
Summons, claim, statement of claim, copy summons
As at present a summary cause will be commenced by summons. The rules provide for only one form of summons. At present there are several forms of summons. It is understood that the change has been made because it is expected that greater use will be made of information technology in the framing of a summons. As under the existing rules, the summons must contain a claim (the summary cause equivalent of a crave in an ordinary action) and a statement of claim (the summary cause equivalent of the condescendence).
There are various forms of claim specified in the rules: a claim for payment of money; a claim for recovery of possession of heritable property; a claim for sequestration of rent; a claim for multiplepoinding; a claim for furthcoming; a claim for delivery; a claim for implement of an obligation; and a claim for damages for personal injury.
Except in the case of an action of damages for personal injury there is no specific form provided for the statement of claim. However, as is the case with the present rules, the new rules do provide that the statement of claim must give the defender fair notice of the claim and that it must include details of the basis of the claim. If the claim arises from the supply of goods or services, the statement of claim must also include a description of the goods or services and the date or dates on or between which they were supplied and, where relevant, ordered.
The provisions governing citation in the new rules are virtually the same as those under the present rules.
While there is only one form of summons (albeit several different forms of claim), the form of copy summons which is to be served on the defender depends on the nature of the action. The rules contain four separate forms: one for actions for payment where the defender may apply for a time to pay direction or a time order; one for actions for payment where no such application may be made; one for non-monetary actions; and one for multiplepoindings.
The copy summons served on the defender contains two dates, which will have been provided by the sheriff clerk when the summons was lodged for warranting. These dates are, as under the present rules, the return day and the calling date. The return day is, in general terms, the date by which the defender must return any document to the sheriff clerk. The calling date is the date when the case will call before the sheriff for a hearing (equivalent to the first calling under the present rules). The calling date is seven days after the return day.
Form of response
All the copy summonses contain a “form of response”. This provides an opportunity for the defender to state in writing any defence to the action. The rules require that a defender who wishes to challenge the jurisdiction of the court or the competency of the action, to defend the action or to state a counterclaim must complete and return the form of response. It is clear from the layout of the form of response that a defender is expected to give notice of the details of any defence. Thus there is a space for him to state which facts in the statement of claim he is admitting and another space for him to state facts on which he intends to rely. There is also space for him to state details of a counterclaim.
This requirement for what is in effect a written defence is an important change from the present rule whereby a defender is not obliged to do anything other than indicate an intention to appear at the first calling of the case to state a defence. Under the new procedure, when a defender lodges a form of response the sheriff clerk must send a copy of it to the pursuer. This means that the pursuer has advance warning of the line of defence which the defender proposes to take.
If the defender includes a counterclaim in his form of response, the pursuer who intends to oppose it must lodge answers thereto within seven days of the lodging of the form of response. A copy of the answers must be intimated to all other parties.
It is of course open to a defender to do nothing in response to the summons. In that event, as under the present rules, the pursuer may minute for decree, which, at least in most actions for payment of money, will be granted without the necessity of the case calling in court. In the case of actions for recovery of possession of heritable property and actions for sequestration of rent, as under the present rules, a case must call in court even though it is not defended. Actions of multiplepoinding and actions of count, reckoning and payment have their own special procedures, which are broadly the same as under the present rules.
Again, as under the present rules, a defender may admit liability and make a written application to the court for decree for payment to be granted by instalments or a deferred lump sum in terms of a time to pay direction or a time order. As under the present rules, in an action where a defender may apply for such an order the copy summons served on him contains a form providing him with an opportunity to give details of his financial circumstances. A written application by the defender for a time to pay direction or time order must be returned to the sheriff clerk on or before the return day. If the pursuer accepts the defender’s application, he must lodge a minute to that effect, and the sheriff may then grant decree in terms of the application without the case calling in court.
In an important change to the present provisions, if the pursuer is opposed to the application for a time to pay direction or time order, he must lodge a minute to that effect at least two days prior to the calling date. The case will then call in court on the calling date, and the sheriff will decide on the application. There is no provision in the new rules for the sheriff clerk to intimate to a defender that the pursuer is opposing an application. The onus is on the defender to ascertain the position. However, it may be that, as happens in some courts at present where the pursuer has not minuted for acceptance of an application, such an intimation will be sent. The sheriff may decide on an opposed application in the absence of all parties.
Where a defender has lodged a written application for a time to pay direction or time order and the pursuer has failed to lodge a minute either stating that he does not object or opposing the application, the sheriff may dismiss the action. However, it would also be open to the sheriff simply to grant decree in terms of the written application, and this may prove to be the more favoured option.
In his form of response the defender may, instead of making a written application for a time to pay direction or time order, indicate that he wishes to attend court to make an oral application for such an order. The case must then call on the calling date and the sheriff will decide whether to grant the application, having heard parties’ submissions. Paradoxically, it is provided that the sheriff may hear and determine the application in this situation even though neither party appears.
Recall of decree
As under the present rules there is provision for recall of decree in certain circumstances. The situations in which recall may be granted are wider than under the present rules. Thus as well as providing for recall of decree in a case which was never defended, the new rules allow recall in the case of a defender who has lodged a form of response but who has failed to appear on the calling date. Recall may also be granted in the case of a pursuer who has failed to appear on the calling date when the defender who had lodged a form of response did appear. Recall is also now possible where the action has been dismissed because all parties have failed to appear. As under the present rules, recall of the decree must be granted if applied for, and an application for recall may be made on only one occasion.
If the defender lodges a form of response containing a challenge to the jurisdiction or competency, a defence to the action or a counterclaim, the case calls in court for a hearing. While this hearing bears certain similarities to the first calling under the present procedure, there are substantial differences and it is probably advisable that the practitioner should forget all about the present rules and become fully conversant with the new.
One very important difference between the new procedure and the old is that the sheriff may continue a hearing under the new rules “to such other date as he considers appropriate”. There is thus no limit on the length of any continuation and not as under the present rules a maximum period of 28 days. Although it is not specifically stated, it is implicit in the new rules that a hearing may be continued on as many occasions as the sheriff thinks appropriate and not on only one occasion as provided in the present rules. However, the policy aspiration of the new rules is clearly that there should be as little delay as possible in the progress of a summary cause. The purpose of the hearing is to achieve real progress in the action at this stage, either by determining the action in whole or in part, or by clearly focusing the issues for proof when such is necessary, as outlined below. It is therefore to be expected that multiple continuations will not be common.
At the hearing the sheriff may dismiss the action if he is satisfied that the action is incompetent or that there is a patent defect of jurisdiction, although in the latter case, he may instead transfer it to the appropriate sheriff court.
If there is no problem about competence or jurisdiction the hearing proceeds. The intention of the rules is that the sheriff should be interventionist. He must first ascertain the factual basis of the action and any defence and the legal basis on which the action and defence are proceeding. This will clearly require the sheriff to ask questions of the parties or of those representing them. It will also require that the parties or their representatives know what the action is about, something that is so often not the case at first callings under the present rules. There should in fact be no excuse for a pursuer or his solicitor not being in a position to give full information to the sheriff. He should know what his own case is about. He will have had intimation of the defender’s form of response, so he should also know what the defence is about.
Having ascertained the factual and legal bases of the action and the defence the sheriff must “seek to negotiate and secure settlement of the action between the parties”. This too is a major innovation as compared with the present rules. The first thought which springs to mind is to wonder whether most sheriffs are equipped with the necessary skills to function as either mediator or arbiter, which this rule appears to require. From the practical point of view, it is suggested that many sheriffs, having identified possible fields for compromise, will continue the hearing to enable the parties or their solicitors to negotiate.
If the sheriff is unable to secure a settlement, he must identify and note on the summons the issues of fact and law which are in dispute. He should also note any facts which are agreed.
If it appears to the sheriff that the claim as stated or any defence stated in response to it is not soundly based in law in whole or in part, he should hear parties on that matter and may grant decree in favour of any party. The sheriff must give brief reasons for his decision. This is a most important new provision. Under the present rules the sheriff is not permitted to consider any question of law until the facts have been established. This has on occasions resulted in an action proceeding to proof even though it is patently irrelevant or there is no defence in law. Under the new rule such anomalies should be avoided. While the new rule provides that the sheriff should hear parties on legal matters “forthwith”, it is suggested that, unless the point is a relatively simple one, it would be appropriate for the sheriff to continue the hearing to enable parties to address him at greater length.
If the sheriff is satisfied that the claim and any defence have or may have a sound basis in law, and that the dispute between the parties depends upon resolution of disputed issues of fact, he must fix a proof unless he is satisfied “that the facts of the case are sufficiently agreed”. In the latter case he may hear parties “forthwith” on the merits of the action and may grant decree in whole or in part in favour of any party. It is again suggested that in this situation it may be appropriate for the sheriff to continue the hearing to a later date in order to enable parties to address him at greater length.
If the sheriff does allow a proof the sheriff clerk makes up a case folder as in an ordinary action.
Sheriff Alastair L Stewart, QC is a Sheriff for Tayside, Central and Fife at Dundee
In this issue
- Reflection on the law of rape
- MDPs compromise core values
- Maintaining the value of trust
- Website reviews
- Scheme for accounting for counsel’s fees
- Keeper’s corner
- Clause 13: unlucky for some?
- The new summary cause and small claim rules
- AGM report
- Fairness – apparent and otherwise
- Risk management roadshow review
- Strangled by red tape?
- Changes in special educational needs
- Scottish Solicitors’ Discipline Tribunal 2002
- Book reviews