RESPONSE
COURTS REFORM (SCOTLAND) BILL
Yvonne MacDermid, Chief Executive, Money Advice Scotland
and
Sarah O’Neill, Consultant to Money Advice Scotland
24 May 2013
1
Response from Money Advice Scotland to Courts Reform (Scotland) Bill: a
consultation paper
Introduction
Money Advice Scotland welcomes the opportunity to respond to this consultation
paper. This response is based on the views and opinions expressed by some of our
members who attended a consultation day which we held on 30 April 2013 to discuss
the consultation. Our members include many experienced money advisers, with
significant experience of representing clients throughout the court process, primarily
in relation to small claims, debt, rent arrears, mortgage repossessions and
sequestration cases. This response aims to reflect the views of those advisers in
relation to the likely impact of the proposals on their day to day work, but more
importantly the impact these will have on the individual court users whom they
represent. This response does not address all of the questions in the consultation, but
focuses on those aspects of the consultation, and the draft bill, which are likely to be
of most relevance to those users. The majority of our comments relate to the proposed
third tier and simple procedure in particular, as this is likely to be the change which will
directly affect the majority of advisers and unrepresented court users.
We are disappointed that the consultation paper does not ask questions about many
of the provisions of the draft bill which are of particular concern to us, such as the
detailed provisions in relation to simple procedure. These will be of particular
importance to individual court users. We have therefore addressed these issues in this
response, although these points do not relate to specific questions asked in the
consultation paper.
About Money Advice Scotland
Money Advice Scotland is the national umbrella organisation in Scotland which
promotes and champions the development of free, independent, impartial, confidential
money advice and financial inclusion.
Money Advice Scotland was set up in 1989, and has provided the following services
to its members:
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Standards and quality framework development
Qualifications
Training
Research and policy input
Annual Conference
Seminars and other events
Publications
Consultancy
Organisational audits
2
In terms of standards and quality framework development, Money Advice Scotland
has been at the forefront of raising standards in Scotland, and beyond. The
organisation was involved in developing a framework which underpinned the Debt
Arrangement Scheme Regulations, and gave assurance that the advice being given
to clients was of quality. The framework which was in place until 2011, the casework
of which was assessed by competent advisers who were also approved advisers
under the Statutory Debt Arrangement scheme. Due to a change in government policy
the scheme was changed.
Money Advice Scotland is an approved Centre for the delivery of Scottish Vocational
Qualifications in Advice and Guidance. It is currently working with the Institute of
Money Advisers in England and Wales to develop the Scottish version of the
Certificate in Money Advice Practice, which is near completion.
Money Advice Scotland is also working closely with the Money Advice Service in terms
of the development of a national money advice quality framework.
With regard to training of money advisers, the organisation has been using standards
to underpin its training for almost 20 years. In more recent times, the Scottish
Government in conjunction with the advice sector has developed the Scottish National
Standards in Information and Advice (SNS), and Money Advice Scotland was a pivotal
player in their development. These standards are enshrined in current training and
also help shape the Certificate in Money Advice Practice, together with the National
Occupational Standards in Advice and Guidance, and Legal advice.
General comments
We welcome the intention of modernising the courts in Scotland and making court
processes more accessible and understandable for users. We support the benefits
which the Making Justice Work Programme is working to achieve, in particular
improved user experience, affordable access, fair and equitable justice and increased
public confidence in the justice system. The courts are of course just one aspect of the
civil justice system, and if the experience of users is to be significantly improved, it is
vital to ensure that all of the various strands of the Making Justice Work programme
are as joined up as possible. We believe that the courts should be viewed as a last
resort, and it is vital that resources are concentrated on ensuring early advice is
available and that other forms of dispute resolution are made available at an early
stage. We strongly support the conclusions of the recent Consumer Focus Scotland
report Facing up to Legal Problems1, which recommended a person-centred approach
to solving legal problems as early as possible.
If the system is really to be improved to the benefit of users, the starting point for reform
must be a clear recognition, as set out in the Strategy for Justice in Scotland, that the
civil justice system provides a vital public service. Like any other public service, it
should be focused on the needs of its users. While we recognise that others working
within the system, such as judges, lawyers and court staff, have an interest in ensuring
1
Consumer Focus Scotland (2012) Facing up to Legal Problems: towards a preventative approach to
addressing disputes and their impact on individuals and society, Glasgow: Scottish Consumer Council
3
a modernised and more efficient system, ultimately the system is there for the benefit
of the public who need to use it.
Money Advice Scotland is particularly concerned with the impact which the changes
will have on individual users, who are not generally legally represented, and may only
come into contact with the courts once or twice in their lives. They may be pursuers for example in small claims cases, but are also very often defenders - in debt cases,
mortgage repossessions or rent arrears cases, for example. Regardless of whether
they are pursuing or defending a case, the vast majority are reluctant court users, and
the system must be as straightforward as possible for them to navigate their way
through.
Modernisation of court procedures
We therefore welcome the Scottish Government’s intention to modernise and simplify
court procedures. We believe that such reform is long overdue, and we hope that
moving away from the current system, with four different types of procedure and a
myriad of complex rules operating in the sheriff courts, will help to make the system
less confusing and intimidating for users. That said, while we welcome the proposals
to make the courts more accessible and user friendly, it must be recognised that
changes to legislation and court rules alone will not achieve this. Past experience
suggests that an intention to ensure more user-friendly operation of the courts does
not always translate into practice. The existing small claims procedure was, for
example, intended to be used by unrepresented consumers, and to be more informal
and user-friendly than other court procedures. The procedure has, however, operated
more formally than intended, placing unrepresented litigants at a disadvantage. 2
Changes designed to make the procedure more user friendly were introduced in 2002,
but the experience of advisers suggests that these have not greatly improved the
situation. While many sheriffs do try to assist litigants where possible, ultimately the
current role of the court is to make an authoritative decision. The process also remains
adversarial and often dominated by lawyers, while most cases involve business or
public authorities pursuing individuals, rather than the other way round.
While the general framework of the draft bill is a good starting point, if the courts are
truly to become more user friendly, there is a need for a radical change in culture within
the courts. It is clear that the approach taken by the Scottish Civil Justice Council will
be crucial in achieving this, as will the approach of the Scottish Courts Service. While
the draft bill sets out some of the key structural changes, the real detail will be in the
court rules, which will be largely determined by the Scottish Civil Justice Council. It is
vital that the council seeks to simplify procedures so far as possible, with users in
mind, and that it consults the appropriate consumer and advice organisations in doing
this, and also seeks to engage directly with court users.
2
See, for example, Scottish Consumer Council (1989) Report of a Study to Investigate the Attitudes
of Advisers to the Small Claim Procedure in Scotland, Glasgow: Scottish Consumer Council; Scottish
Office Central Research Unit (1991) Small Claims in the Sheriff Court in Scotland: an assessment of
the use and operation of the procedure, Edinburgh: Scottish Office; Citizens’ Advice Scotland (1998)
Lay Representation in Courts and Tribunals, Edinburgh: Citizens’ Advice Scotland
4
There is considerable evidence that the public perceive the courts as intimidating,
formal and complex, and that this plays a role in deterring them from going to court.3
We believe that there are a number of ways in which this might be addressed. Firstly,
we support the recommendations of the 2006 Osler report on the Agency Review of
the Scottish Court Service.4 The report recommended that the judiciary should
consider a review of historic practices, conventions and forms of dress within the
courts, pointing out that there was a need to balance respect for the origins of such
practices with the needs of those who use the courts in today’s society. There are a
number of fairly straightforward changes which could help to make going to court a
less frightening ordeal for individual users. Those who are very familiar with the courts
system may not even always be aware of how unfamiliar and intimidating court
processes can be for those who are not.
We would point to the kinds of issues mentioned in the 2011 report of the Civil Justice
Advisory Group, which were raised by participants at its consultation seminar. 5 Those
present discussed litigants being made to feel like ‘outsiders’ in the process, unfamiliar
with its customs and language; for example, solicitors can sit in the well of the court
near the sheriff, but individual litigants are only allowed to go there when their case
calls and have to sit at the other end of the table. Others noted that many litigants wait
outside the court room because they don’t know whether they are allowed to go in,
pointing out that something as simple as a sign telling people to come in if they think
their case is being heard in that court would improve the situation. Other suggestions
included the removal of wigs and gowns by sheriffs and judges when hearing civil
cases, and greater openness in court processes, by ensuring for example, that there
is a nameplate on the court bench, so that party litigants and witnesses know the name
of the sheriff or judge who is hearing their case.
The need to separate civil and criminal business
A central issue in this debate, as identified by both the civil courts review and the Civil
Justice Advisory Group, is the impact of retaining a mixed civil and criminal jurisdiction
in the civil courts. Firstly, we are concerned that the intention to include summary
criminal cases within the jurisdiction of summary sheriffs is likely to simply replicate
the current problems in the sheriff court, where criminal business takes precedence,
squeezing out civil business. We are also concerned that the proposed court closures
may further exacerbate this, leaving even less time in the court timetable for civil
cases. We also think that is would be in the best interests of users and of justice if
summary sheriffs with specific expertise in civil cases were to deal with those types of
case.
3
See for example Genn, H. and Paterson, A. (2001) Paths to Justice Scotland: What People Do and
Think About Going to Law, Oxford – Portland Oregon: Hart Publishing; Consumer Focus
Scotland/Scottish Legal Aid Board (2009) The views and experiences of civil sheriff court users,
Edinburgh: Consumer Focus Scotland/Scottish Legal Aid Board; Scottish Consumer Council (1997)
Civil Disputes in Scotland, Glasgow: Scottish Consumer Council
4 Osler, D. (2006) Agency Review of the Scottish Court Service, Edinburgh: Scottish Executive Justice
Department
5 Consumer Focus Scotland (2011) Ensuring effective access to appropriate and affordable dispute
resolution: the final report of the Civil Justice Advisory Group, Glasgow: Consumer Focus Scotland
5
We note that the Scottish Government has discounted the option of authorising some
summary sheriffs to deal only with civil business on the grounds that this would require
the appointment of only 30 full time civil summary sheriffs, which is unworkable in a
jurisdiction with over 40 sheriff court districts. We would question, however, whether
all of these civil summary sheriffs would need to be full time, particularly in less busy
courts. We would suggest that it might be feasible to have at least one part-time civil
summary sheriff in each sheriff court district, if not in each sheriff court. It may even
be easier to recruit suitable qualified civil practitioners on a part time basis. We also
consider that there may be IT solutions which could be employed to ensure that those
in all sheriff court districts have access to a civil summary sheriff, should it not be
practical to have one in each court. In any case, we would certainly hope that there
will be scope for specialist civil summary sheriffs in many of the larger courts.
Our concerns here are wider than whether summary sheriffs should deal with both civil
and criminal cases, however. From the user’s perspective, there is a more
fundamental argument for separating how and where criminal and civil cases are
heard, regardless of whether the same summary sheriff or sheriff is dealing with them.
We believe that the current mixed jurisdiction is one of the root causes of people’s fear
of using the courts. The public associate courts strongly with criminal cases, and this
has been found to impact on people’s willingness to engage with the civil justice
system. The Paths to Justice Scotland research found that the public were largely
unable to distinguish between criminal and civil courts and that their perception of
courts as institutions which deal with crime contributed to their reluctance to become
involved in civil court proceedings.6 One adviser at our consultation event reported
instances of defenders in court cases thinking they are on trial and must stand in the
witness box. This sort of reaction was confirmed by 2009 research into the
experiences of civil court users carried out by Consumer Focus Scotland and the
Scottish Legal Aid Board. 7 One defender in a rent arrears case said, for example:
‘I was actually shaking to be quite honest with you….What was going to happen to
me, was I going to go to jail?... I was sitting outside the court room and I was biting
my nails…and I was actually crying…. Nobody had said what would happen to me’.
Given the strength of concern on this issue which emerged from its seminar and the
consultation responses it received, the Civil Justice Advisory Group’s 2011 report
recommended that there should be a clear separation between the civil and criminal
courts within the third tier, and that the necessary steps should be taken to ensure that
such a practical separation is achieved. Money Advice Scotland supports this
recommendation for the reasons set out above.
6
Genn, H. and Paterson, A. (2001) Paths to Justice Scotland: What People Do and Think About
Going to Law, Oxford – Portland Oregon: Hart Publishing
7
Consumer Focus Scotland/Scottish Legal Aid Board (2009) The views and experiences of civil
sheriff court users, Edinburgh: Consumer Focus Scotland/Scottish Legal Aid Board
6
We appreciate that this may cause practical difficulties for the courts, but given its
fundamental importance in improving the experience of civil court users, we think that
it needs to be addressed. We believe that there are a number of practical solutions
which should be considered. While ideally we would like to see separate buildings for
civil and criminal cases, as is currently the case in Hamilton (which advisers report
works very well), we appreciate that against the current backdrop of budget cuts and
court closures, this is not a feasible option. We do think, however, that civil and criminal
business could be kept separate, at least to some degree, by considering more
innovative solutions, which would not require separate buildings.
Firstly, we support the view of the Civil Justice Advisory Group that separation of civil
and criminal business might be achieved at least in part by developing closer links
between third-tier civil business and tribunals where possible, including use of shared
premises and shared judicial personnel. As the Group’s 2011 report pointed out, the
intention that the new simple procedure should be based on a more inquisitorial
approach fits better with the ethos of tribunals than that of the criminal courts. 8 It may
also help to address concerns about there being insufficient civil business to appoint
civil only summary sheriffs.
Where there are currently insufficient court or tribunal premises available to provide
for such a separation of criminal and civil business, we believe there are other
relatively simple ways of creating greater separation, as discussed below.
Focusing on the users’ needs, rather than those of the courts
If the reforms are truly to achieve a modernised courts system which is focused on the
needs of its users, new ways of doing things must be seriously considered. Firstly, if
the Scottish Government really wishes to achieve ‘the most radical transformation of
the courts and tribunals system in at least a century’, as stated in its Strategy for
Justice 9, the courts should no longer be viewed as necessarily occupying physical
buildings in specific locations, particularly in light of proposed court closures.
Secondly, consideration must be given to whether the current timings and inflexibility
of court hearings are providing the best and most convenient service to the public. It
is important that institutions for resolving disputes are easily accessible for those who
need to use them. There are likely to be particular issues relating to local dispute
resolution in rural areas. Given current concerns over court closures, other ways of
bringing local justice to parties might be considered. Rather than focusing on court
buildings, other less formal buildings might be used, such as local authority buildings
or even local halls or other venues. At present, for example, the Private Rented
Housing Panel holds hearings in a variety of local venues which are close to the rented
property concerned, which the panel must inspect prior to the hearing.
8
Consumer Focus Scotland (2011) Ensuring effective access to appropriate and affordable dispute
resolution: the final report of the Civil Justice Advisory Group, Glasgow: Consumer Focus Scotland
9
Scottish Government (2012) Strategy for Justice in Scotland, Edinburgh: Scottish Government
7
While we understand the concerns that have been expressed about the importance
of local justice in the context of recent proposal for court closures, however, it is
important to recognise that accessibility of courts is not the same as proximity. We
also think that while it is clear that people want to resolve their disputes, they do not
necessarily need this to be done via a local court. Some of the concerns about local
justice may be addressed by considering alternative ways of accessing services, or
by changing court processes.
We think there is real potential for greater access to the courts through IT. While it is
important that people have access to information about court processes, they do not
necessarily need to physically visit the sheriff clerk’s office. Small claims forms can
be downloaded from the Scottish Court Service, but at present, it is not possible for
users to lodge the forms online. If this facility was available, together with improved
interactive information for users, this would be much more convenient for many
people, as well as their advisers/representatives. Rather than having to search the
Scottish Court Service website for information, we hope that those with disputes will
be guided through the proposed digital portal for public services towards the relevant
information. . While internet access rates are lower in Scotland than elsewhere in the
UK, broadband access increased significantly in 2012 to 68% of households.10 While
a sizeable minority of people remains offline, recent evidence suggests that while
some debt clients continue to need face-to-face delivery, many others are open to
phone or internet advice, and find these to offer greater accessibility, convenience
and anonymity.11
We also consider that there is potential for greater use of videoconferencing and
teleconferencing as a way of enabling access to civil court proceedings. While the
use of videoconferencing and teleconferencing is being considered as part of the
Making Justice Work programme, however, it is our understanding that the main
focus of that work is on the use of these technologies within the criminal justice
system.
We also think that changing current court processes may help to reduce the need for
a case to call in court prior to a final hearing, thus reducing the need for travel to
court. The Civil Justice Advisory Group suggested, for example, that the potential for
greater use of electronic forms, including ‘tick-box’ forms, should be explored to
minimise the number of times a case requires to call in court prior to its hearing.12
Moreover, identifying where greater use could be made of written correspondence
10
Ofcom (2012) The Nations and Regions Communications Market Report 2012, London: Ofcom
11
Money Advice Trust (2012) Debt Advice Channel Strategy Research- Volume Two, London: Money
Advice Trust
12
Consumer Focus Scotland (2011) Ensuring effective access to appropriate and affordable dispute
resolution: the final report of the Civil Justice Advisory Group, Glasgow: Consumer Focus Scotland
8
could lead to improvements in the system. Improving the provision of information for
court users could also help to ensure that parties do not make the journey to court
when this is unnecessary. The 2009 research into the views and experiences of civil
sheriff court users, published by Consumer Focus Scotland and the Scottish Legal
Aid Board found that some litigants had turned up to court on the appointed day,
expecting to appear in front of the sheriff with their opponent, only to discover that
they did not actually need to attend, and that the matter had been dealt with in
private by the sheriff on the basis of the papers. Other parties were annoyed when
they arrived in court for their hearing, only to find out that it had been postponed
without them having been notified about this.13
At present, parties attending court are expected to fit in with the courts’ way of
working and the timing of court sittings. This means that people need to take time off
work to attend court, or may have difficulty in securing childcare, and may not always
be able to attend as a result. Moreover, the current system for small claims and
summary cause cases means that everyone is asked to be there at the same time,
and may have to wait for hours for their case to be called.
If the courts are to be truly focused on their users, we would suggest that hearings in
the third tier should be arranged to be convenient for users, rather than for the court.
This could include introducing evening hearings and perhaps weekend hearings, as
some tribunals already offer. Such changes would have a number of advantages for
users. Firstly, assuming that criminal cases continued to be dealt with on weekdays,
it would ensure that civil and criminal business would not be heard during the same
hours, thus creating a clear practical separation between the two, without the need
for separate buildings. Holding evening or weekend hearings would also make it
easier for many parties to attend court, and to encourage witnesses to attend court,
as they would not need to take time off work, and it may be easier for them to make
child care arrangements, for example. It may also be easier for lay representatives to
appear in court, and may even be more convenient for some summary sheriffs.
One of the recommendations from the Consumer Focus Scotland/ SLAB research
into court users’ experiences was that consideration should be given to the
introduction of an appointments system, so that parties are given a specific time
when they have to appear in court. It was suggested by the researchers that this
may reduce the frustration people felt at being requested to arrive in court at 10am
and then having to wait their turn alongside other litigants to have their case heard.14
Such an appointments system may also be more convenient if the timings of public
transport from some places do not fit with the existing court timetable
13
Consumer Focus Scotland/Scottish Legal Aid Board (2009) The views and experiences of civil
sheriff court users, Edinburgh: Consumer Focus Scotland/Scottish Legal Aid Board
14
Consumer Focus Scotland/Scottish Legal Aid Board (2009) The views and experiences of civil
sheriff court users, Edinburgh: Consumer Focus Scotland/Scottish Legal Aid Board
9
Representation by non-lawyers
We note that section 86 (l) specifically gives the Court of Session power to provide for
the representation of parties by non-lawyers. We hope that this provides an
opportunity to clarify and harmonise the rules in this area, which demonstrate very well
why the current system is so complex and confusing. There are currently a variety of
different rules on lay representation in different sheriff court procedures. While we
welcome the intent behind recent provisions within the existing court rules to provide
for McKenzie friends and lay representatives, we are concerned that this has resulted
in an even more confusing picture, with three separate sets of provisions in relation to
representation and ‘lay support’ in small claims and summary cause actions.
In small claims cases, for example, there were already rules allowing a party to be
represented by an authorised lay representative unless the sheriff considers they are
not a suitable person to represent the party, while the rules introduced in April 2013
introduce a more complex process requiring that representative to lodge a form with
the court. The new rules also mean that an authorised lay representative may appear
in a summary case first calling unless the sheriff considers they are not suitable, but
must then lodge an application with the court if they wish to represent the party in any
defence of the action. There are also different rules in relation to bankruptcy
proceedings and mortgage repossession cases under the Homeowner and Debtor
Protection (Scotland) Act, for example. This situation needs to be addressed to ensure
greater consistency and certainty for parties and their representatives, as well as
sheriffs.
10
Specific comments on the consultation questions
Chapter 2: Creating a new judicial tier within the sheriff court
Many of our comments and concerns about this aspect of the consultation, and in
particular some of the detailed provisions of the draft bill in relation to simple
procedure, are not related to the specific questions in the consultation paper. These
comments are set out below.
Summary sheriffs
We welcome the proposal that summary sheriffs may be appointed on a part-time
basis. We think that this will over time assist in increasing the diversity of the judiciary,
helping to ensure that it better reflects the public which it serves. We are aware that
there have been concerns about part-time judicial appointments in the past, which
have been based largely on the assumption that these will be filled by solicitors or
advocates in private practice in the same geographical area. We think, however, that
there are likely to be many suitably qualified individuals who may not fit into that
category and would be interested in such a role. These might include academic or
public sector lawyers, those with family commitments, or those who wish to work parttime in combination with tribunal or other positions.
We also welcome the proposed interventionist approach set out in section 72 of the
draft bill. We have long had concerns about the adversarial approach followed in the
courts, which clearly disadvantages party litigants, and we note that the intention is
that summary sheriffs will develop a new style of judging, based on a problem solving
and inquisitorial approach. We would again stress the points made earlier in this
response about the need to change the whole culture and approach within the courts,
rather than just the rules. Similar attempts have been made before - the 2002 changes
to the small claim rules aimed to encourage the sheriff to seek to negotiate between
the parties and secure settlement of the dispute, but this has not always been
successful in practice. We note that section 72 takes this further by providing that the
summary sheriff can adopt a procedure which is appropriate to and takes account of
the particular circumstances of the case. We welcome this and hope that it will be
reflected in the court rules, in judicial training and eventually in practice, to the benefit
of the parties in simple procedure cases.
It will also be important that summary sheriffs are familiar with, and have experience
of, the types of civil action they are likely to be dealing with. In relation to housing
cases, for example, it is important that the summary sheriff has specialist knowledge
of housing law, and an understanding of the underlying issues which have resulted in
rent or mortgage arrears, and which need to be addressed in order to deal with such
cases effectively. We hope, therefore, that summary sheriffs will be designated as
specialists in particular areas of civil work so far as is possible within the constraints
on the courts, particularly in the bigger and busier courts.
11
Jurisdiction
We have a number of specific comments in relation to the proposed jurisdiction of
summary sheriffs as set out in Schedule 1 of the draft bill. Firstly, we consider that the
proposed concurrent jurisdiction with sheriffs in relation to family actions may lead to
confusion, particularly given the proposed overlap with the jurisdiction of the Court of
Session in such cases. In particular, we are not clear what would happen if a case
which appeared straightforward turned out to be more complex at a later stage. We
would question what would happen particularly if the case involved unrepresented
parties, given the intention that the summary sheriff should take a more interventionist,
problem solving approach than that of the sheriff or the Court of Session.
With regard to diligence proceedings, Schedule 1 paragraph 5 lists only proceedings
relating to arrestment or inhibition on the dependence of an action and arrestment to
found jurisdiction. Yet the consultation paper states that both the Scottish Government
and the Accountant in Bankruptcy consider that the majority of diligence work in the
sheriff court could be handled by summary sheriffs. If that is the case, we would
question why other types of diligence proceedings - such as arrestment in execution,
attachment, applications under the Debtors (Scotland) Act such as time to pay
directions and orders, and sequestration - are not included in Schedule 1.
Simple procedure
We welcome the intentions behind the simple procedure, although as stated in the
introduction, the required change in approach will not be achieved by new rules alone.
We think that removing the current distinctions between small claims and summary
cause procedure will in itself help to make the system easier to navigate, but we have
a number of questions and concerns about the provisions in the bill and how the
proposed simple procedure will operate in practice.
Firstly, given the general wide powers and discretion of the Court of Session and the
Scottish Civil Justice Council contained in sections 85 and 86, we would question why
some of the detail contained in sections 70- 78 appears on the face of the bill, rather
than leaving this up to the rule making bodies to decide. This would give them greater
flexibility, which the consultation states is behind the new approach. We cannot
understand, for example, why the detail of the procedure for transfer of cases to and
from simple procedure needs to be prescribed on the face of the bill. These specific
provisions (sections 75 and 76) raise some important issues of principle – by providing
that such a transfer can be made by joint application only, this departs from the current
approach to remit of cases between procedures, where the sheriff has discretion and
may also grant remit on the motion of one party.15 The draft provision has potentially
major implications for parties, in terms of issues such as expenses, representation and
the availability of legal aid, and these should be considered carefully.
Including this kind of detail in the bill, which is also apparent in relation to other issues
such as expenses, appears to follow the approach of the Sheriff Courts (Scotland) Act
1971 in relation to summary causes, despite the stated intention to take a new, more
15
Section 37 Sheriff Courts (Scotland) Act 1971
12
flexible approach. We cannot see the rationale for this when there is no detail at all in
the draft bill with regard to any other types of procedure within the new system.
Secondly, we are unhappy with the label ‘simple procedure’. We consider that this
could be perceived as condescending in tone, and also we suspect on the basis of
past experience, that it will not be as simple to use as intended. It is also possible that
the procedure could be confused with the simplified divorce procedure. One possible
alternative might be ‘inquisitorial procedure’, although we note that in fact ‘small
claims’ is perhaps the most universally recognised name that could be used.
Thirdly, we do not consider that defining the types of cases that can be dealt with under
the procedure by applying a financial limit is the best approach. Particularly in light of
the proposed increase in the exclusive competence of the sheriff court to £150,000,
we do not consider that a £5000 limit is sufficient in any case. Many consumer
contracts involve much larger sums than this, while the small claims limit in England
and Wales has recently been increased to £10,000. While we appreciate that there is
provision in section 70 (11) for the limit to be increased, this does not allow for the limit
to be uprated in line with inflation, and there is no requirement to review this limit at
regular intervals. Past experience suggests that this approach can result in a system
which lags well behind inflation for many years: the small claims limit of £750
introduced in 1988 remained at that level for 20 years, when it was finally increased to
£3000 in 2008, after many years of campaigning by consumer organisations.
We would suggest that a better approach would be to specify the categories of case
which must be dealt with under the simple procedure. Given the intention that it should
be aimed at unrepresented parties, we think it should apply to the following types of
case, regardless of the amount of money involved:



Consumer actions, including consumer credit cases
Housing cases (only if no specialist forum for housing disputes is established)
Bankruptcy cases
If this approach were taken, there would be other issues to consider, including the
availability of legal aid. This is not currently available for representation in small claims
cases, and it would be necessary to review how and when legal aid might be made
available in relation to simple procedure cases.
In relation to consumer cases, we would suggest that these should be defined by
reference to the comprehensive definition contained in the Civil Jurisdiction and
Judgments Act 1982.16 In keeping with the intention to simplify the rules, it would be
preferable to replicate this in the draft bill. Debt actions involving overdrafts, which are
not included within the definition of a regulated agreement under the Consumer Credit
Act 1974, should also come under simple procedure. We would also point out that at
present, a time order may be applied for in relation to a regulated agreement,
regardless of the amount of money involved.
16
Schedule 8 Rule 3
13
As regards housing cases, it is not clear from the face of the draft bill whether simple
procedure is intended to apply only to actions involving the recovery of rented property.
While we appreciate that this will depend to an extent on the outcome of the current
consultation on resolving housing disputes, we note that there is a provision in the
draft bill which appears to suggest that it may apply to mortgage repossession cases,
where the sum owed is below £5000.17 We consider that if housing cases are to
remain in the courts, mortgage repossession cases should be dealt with under the
same procedure as evictions in relation to rented property, regardless of the amount
owed. The sum owed in a repossession case may well be more than £5000, and in
rent arrears cases, too, it is possible for the arrears, particularly in private sector
tenancies, to be above this amount.
We believe that a separate forum for housing disputes, as recently consulted on by
the Scottish Government, would be the best option. This would ensure that cases are
heard in a specialist forum by decision makers who understand housing law and the
types of issues which arise for those with housing disputes. If housing cases are to
remain in the court, however, it is important that they are dealt with by specialist
summary sheriffs, and that the procedure is simple and straightforward to use. At
present, cases under the Homeowner and Debtor Protection (Scotland) Act 2010 are
more challenging for lay representatives, as they fall under the more complex
summary application procedure, which requires various forms to be lodged in court. A
repossession action can also be more costly than a rent arrears case, as there can be
significant costs involved for the homeowner, for example, in lodging a minute for recall
or notice of intention to defend. It would be important, however, that legal aid continued
to be available for repossession cases.
Finally, with regard to the provisions on expenses in simple procedure cases, we
would comment that much of the wording in section 77 looks very similar to the
existing provisions in relation to small claims.18 In particular, we would question
whether it is likely that the current situation will continue whereby even if successful,
a party whose claim is below a certain level will not be entitled to recover any
expenses, including their court fee.19 This can result in a party being substantially out
of pocket, even if they win their case. We also note that different expenses levels
may be prescribed in relation to different categories of cases, based on the value of
the claim. We suspect that this is included in order to allow for the continuing
differentiation of expenses according to current small claims and summary cause
levels, which will be confusing for parties, and is not conducive to making the system
simpler.
We also note the provisions in sections 77 (5) and 77 (6), which allow the summary
sheriff to alter the level of expenses awarded in a particular case where s/he considers
that a difficult question of law or fact is involved. We have concerns about how this
might be applied in practice, as this has the potential to land party litigants with
significant expenses, which may well be a deterrent to making or defending a claim.
One of the main benefits of a fixed expenses regime is certainty for parties that even
17
Schedule 3 Part 4 Para 18
Section 36B Sheriff Courts (Scotland) Act 1971
19 Section 36B Sheriff Courts (Scotland) Act 1971; Small Claims (Scotland) Order 1988
18
14
if they lose, they will not face a huge expenses bill. We have already seen cases where
claims relating to unfair bank charges have been remitted to ordinary cause procedure,
with likely exposure to much higher expenses should a party be unsuccessful. We
would be very concerned that this provision could be applied to whole categories of
cases, such as bank charges claims, lifting the cap on expenses because they involve
complex legal issues.
Chapter 3: Creating a new sheriff appeal court
We welcome the intention that decisions made by the sheriff appeal court will be
binding throughout Scotland, which should lead to greater consistency than at present,
where a decision made by a Sheriff Principal is only binding within that sheriffdom.
That said, this could be problematic if an incorrect decision were to be made, which
would then apply throughout Scotland, rather than in only one sheriffdom, and would
also be binding on any future Sheriff Appeal Court, unless that court was constituted
by a greater number of Appeal Sheriffs than the original court, by virtue of section 47
(c).
Chapter 5: Improving judicial review procedure in the Court of Session
Q19: Do you agree with the three month time limit for judicial review claims to
be brought?
We are concerned that a three month time limit from the date on which the grounds
giving rise to the application arose seems very short, particularly given the potential
public interest considerations involved in such cases. While we note that Section 84
(1) (b) of the draft bill gives the court discretion to extend this time limit, the wording
suggests that this is likely to be in exceptional cases only. Three months is a very
short time for a group or individual to recognise that they may have a case and to get
themselves organised and obtain funding to do something about this. While we
accept that there is a three month time limit in England and Wales and some other
jurisdictions, we note from the report of the civil courts review that other countries
(such as Australia) have a more generous six month time limit, while others (such as
New Zealand), have no time limits at all.20 We therefore consider that in the interests
of justice if a time limit is to be imposed, it should be longer than three months.
Chapter 7:
Alternative dispute resolution
Q36. Do you think that ADR should be promoted by means of court rules?
Yes. There are already rules of court enabling the sheriff to refer parties to mediation
in certain family cases and in commercial actions. We think that such rules should be
introduced in relation to other types of action. We believe that court should be
viewed as a last resort, and that encouraging the use of alternative dispute resolution
processes, such as mediation, is an important means of improving access to justice,
as well as reducing the potential impact resulting from the loss of local courts. While
most people agree that the courts are an important way for people to enforce their
20
Report of the Scottish Civil Courts Review, Volume 2: Annex to Chapter 12
15
rights, research has shown that those involved in disputes are more interested in
finding a resolution to their problem or getting on with their lives, than necessarily
enforcing their legal rights.21 We also know that people would generally prefer to
avoid becoming involved in legal and court processes. They are apprehensive about
involvement with lawyers and also the potential costs, formality, delay and trauma
they associate with legal processes.22
We are aware that the Sheriff Court Rules Council proposed in 2007, after a
consultation process, that rules should be introduced in the sheriff court which would
encourage, but not compel, parties to try to resolve matters via mediation or other
forms of dispute resolution before committing to litigation. However, it was agreed that
consideration of this matter would be deferred until the civil courts review had
concluded. We believe that court rules should be introduced as soon as possible which
would encourage, but not compel, parties to seek to resolve their dispute by mediation
or another form of alternative dispute resolution, prior to raising a court action.
Although we are aware that this may have the potential to become a ‘tick box’ exercise,
and while we would hope that parties would consider ADR at an earlier stage, we think
having such a rule in place would prompt them to find out about different forms of
dispute resolution and give consideration to using these.
While the focus in relation to ADR tends to be on mediation, there is clear potential
for greater use of other forms of ADR, and we consider that the courts should be
aware of these, and encourage parties to consider them. There are a variety of
sector-specific consumer arbitration schemes in existence, for example, and we
believe there is potential for greater use to be made of these. We also consider that
some cases may be suitable for consideration by the Financial Ombudsman Service.
With the changes to legislation regarding the transfer of consumer credit from the
Office of Fair Trading to the Financial Conduct Authority from 1 April 2014, it is also
possible that more cases will be referred to the Financial Ombudsman Service,
should the advice providers become members of the Scheme.
We consider that it is particularly important that provision is made for the potential
use of ADR before a court action is raised, in order to avoid the stress and expense
of a court process where possible. We are therefore pleased to see the reference in
section 86 (2) (b) (ii) to making provision for action to be taken before proceedings
are brought by parties. We wonder whether there might be a role here for the sheriff
clerk when parties come to the court to initiate an action. We would also hope that
21
See for example Genn, H. and Paterson, A. (2001) Paths to Justice Scotland: What People in
Scotland Do and Think About Going to Law, Oxford – Portland Oregon: Hart Publishing; Consumer
Focus Scotland (2012) Facing up to legal problems: towards a preventative approach to addressing
disputes and their impact on individuals and society, Glasgow: Consumer Focus Scotland
22 See for example Scottish Consumer Council (1997) Civil Disputes in Scotland: a report of
consumers’ experiences, Glasgow: Scottish Consumer Council; Genn, H. and Paterson, A. (2001)
Paths to Justice Scotland: What People in Scotland Do and Think About Going to Law, Oxford –
Portland Oregon: Hart Publishing; Consumer Focus Scotland (2012) Facing up to legal problems:
towards a preventative approach to addressing disputes and their impact on individuals and society,
Glasgow: Consumer Focus Scotland
16
any new interactive web based system would alert those with disputes to the
possibility of ADR at an early stage.
Other comments
Jurisdiction in consumer contracts
In relation to section 41 of the draft bill (Jurisdiction over persons, etc.), we note that
no specific mention is made of consumer contracts, which are likely to account for a
considerable proportion of simple procedure cases. While section 41 (3) (b) does state
that everything listed in s 41 (2) is subject to the Civil Jurisdiction and Judgments Act
1982, the rules of jurisdiction in consumer contracts differ from those in other types of
contract in that the pursuer can bring proceedings in the sheriff court for the area where
s/he is domiciled, as well as the sheriff court for the area where the other party to the
contract is domiciled. This is often misunderstood by parties, advisers and even
sheriffs, and we would therefore suggest that it would be helpful to replicate the
relevant provisions of the 1982 Act23 on the face of the bill. This would be in keeping
with the overall thrust of the proposals in making the rules as clear and understandable
as possible, rather than requiring parties to go away and look at the 1982 Act itself.
23
Schedule 8 Rule 3
17