Proposed simple rules could be simpler, Faculty claims

Proposed rules for the new simple procedure in the sheriff court could be made simpler, the Faculty of Advocates claimed today.

Due to be introduced later this year, the simple procedure will replace the summary cause and small claim procedure in the sheriff court for actions worth up to £5,000. It is designed to be speedy, inexpensive and informal, and is intended to be used mainly by non-lawyers.

Responding to draft rules put out for consultation by the Scottish Civil Justice Council. Faculty agrees with the approach taken of having a general set of rules and then more specific rules for particular types of action, but believes it will lead to confusion if the the rules in each part are numbered from 1, as litigants will tend to refer to rule by number without citing the part also.

Generally it agrees with trying to restate legal terms in simple language, including that “claimant” can be used for the party bringing the action, but wonders why “responding party” rather than simply “respondent” has been chosen. "Respondent" is used in some forms of court procedure already, and also in the employment tribunal, where parties are often unrepresented, Faculty points out.

Faculty is also not keen on the sist of a case – suspending procedure on it, perhaps to see if settlement can be reached to to allow a party time to apply for legal aid – being referred to as a “freeze”, since it has a different effect to a “freezing injunction”, a term used alsewhere in the UK.

It commented: “There is a risk of confusion, either from those involved with proceedings both within and outwith Scotland, and perhaps more commonly, with those who attempt to research court procedure on the internet. We would suggest ‘pause’ and ‘unpause’.”

A point on which it thinks the rules should be more specific is in stating parties' duties not to mislead the court, rather than simply referring to an obligation to be honest.

Another suggestion it makes is to provide worked examples of claim and response forms to “assist those not used to completing legal documents.”

Click here to view the full response.