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Published 8 agosto 2023
Simple Procedure initially came into effect in Scotland in 2016. Simple Procedure currently applies to all cases where the sum sought is under £5,000 and no element of personal injury is being claimed. The actions vary from road traffic accidents to debt recovery claims. Simple Procedure is designed to be a speedy, effective and inexpensive for parties to resolve a dispute.
In our experience, Simple Procedure is not as inexpensive a process for a respondent, particularly in cases where liability is initially disputed and later conceded. The court takes the view that you have lodged a defence stating that you do not owe the claimant any funds, as you (the respondent) are not at fault for the incident. If you later concede this point, the stance often taken is that you have lodged a defence and not proceeded with it. This comes with significant expenses implications.
Further updates came into force in all actions raised on or after 31 May 2023. The legislation covering the Simple Procedure rules is the Act of Sederunt (Simple Procedure) 2016.
Under Rule 7.6 (d) and (e) the Sheriff can now either;
(d) if the sheriff thinks that a decision could be made without a hearing, indicate that the sheriff is considering doing so and give the parties an opportunity to object to a decision being made without a hearing
(e) use the sheriff’s powers to dismiss a claim or decide a case under rule 1.8(11), (11A), (12) or (13).
The sheriff, using their own discretion, can indicate to parties that they intend to make a decision on a case or use their discretion to dismiss the claim, or decide the case without a final hearing.
It is therefore particularly key that liability investigations are being carried out early, alongside any quantum/intelligence investigations that may be required. In the event that investigations are not conducted in advance of the matter being litigated, panel solicitors may require to lodge skeletal defences. The sheriff can decide at that point that the defence has no prospects and award the full sum claimed to the claimant.
In the event the sheriff does not proceed on this basis, an "unless order" can be intimated to parties, ordering the respondent to update the response form within a certain period of time. If the unless order is not adhered to timeously, then the sheriff can make a further decision based on the lack of response. The unless order will incur expenses implications as pleadings will likely require to be updated and the respondent will incur the cost of this amendment.
As the update in the rules have only very recently come into effect, it remains to be seen how sheriffs will approach them. However, our recommendation is to be mindful of the fact that the sheriffs can make a decision on the case without a hearing, and to ensure that, pre-litigation, as many investigations are being carried out early as possible, particularly in relation to liability defences.
Should you wish to discuss how you can tailor your approach to the updated rules, or you would like to discuss any Scottish-specific query please do not hesitate to contact our Glasgow Vehicle Hire and Damage Team.
+44 (0) 141 223 8572
+44 (0) 121 698 5309
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