A progress report on its project for a comprehensive rewrite of the civil courts' procedure rules has been published by the Scottish Civil Justice Council.
Its multi-year programme of work, overseen by its Rules Rewrite Committee, aims progressively to replace the wide range of existing rules of court with a simplified, consolidated and user friendly set of New Civil Procedure Rules.
The SCJC's first report, published in May 2017, set out some of the overarching principles through which it is reshaping the overall form and structure of court rules.
Its newly published second report sets out "a procedural narrative as our vision for how a civil action could in future be progressed more efficiently from the initiation of a new case through to the eventual resolution of the matters in dispute". The new model is intended to support litigation across both the Court of Session and the sheriff courts, with similar models for more specialist court procedures being developed later in the programme.
Among the features trailed in the report, the norm will be a requirement for pre-action communication between parties, to focus the issues. Pleadings will be expected to be concise: even in complex actions, they should not normally exceed 10 A4 pages, double spaced in font size 12. Outdated language such as "articles of condescendence" will be replaced. There will be provision for email service.
"Active case management" will be adopted; to make it most effective, parties will be able to state their preferences for how a case will be managed. There will be judicial continuity in actively managed cases. No more than two case management hearings should be needed before a substantive hearing is fixed: something like the model for commercial actions in the Court of Session is proposed.
The substantive hearing may take the form of a proof, proof before answer or debate, depending on the legal and factual issues to be decided. The rules will be framed in such a way as to give the judge maximum flexibility to tailor the substantive hearing to suit the particular case.
"Civil procedure ought to keep pace with evolving technology", the report states. "As one aspect of doing so, the new civil procedure rules will refer to 'information' rather than 'evidence'." Principal documents will not be required unless disputed; and the judge will have a power to order that witnesses can give their testimony by means such as written or videorecorded statement, and to order how that information is to be tested.
Over the next year the Council will be using this procedural narrative to draft a set of new rules to reflect that new model for ordinary procedure. It will then look to consult end users in order to refine and finalise those new civil procedure rules.
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