Andrew Stevenson

Firstly, it is brief, a mere 80 rules covering just under 30 pages and a laudable exception to the regrettable tendency of legislation to swell to unwieldy dimensions. One hopes that there would not be a deluge of forms to accompany these rules.

Secondly, and innovatively, the draft would apply exactly the same rules in the Sheriff Court as in the Court of Session. Hitherto, for no good reason, there have been significant differences in how actions are commenced and how they are managed once raised.

Some procedural changes to the draft rules would be welcomed, such as the requirement to serve a summons within four months rather than within a year and a day, and that summonses and defences should not ordinarily exceed 5,000 words. Equally sensible, from a time management perspective, is the rule that the same judge or sheriff should, if possible, hear the case from start to finish.

Thirdly, however, the draft comprehensively erodes the principle that litigation in Scotland is adversarial. Case flow management has been infiltrating the courts since the “Coulsfield Rules” entered the Court of Session 20 years ago in personal injury cases, followed six years later in the sheriff court. These measures introduced pro-active control by the judge or sheriff, at odds with conventional adversarial procedure in which the pace and presentation of litigation was almost entirely driven by agents or counsel. A similar approach was introduced in commercial and family cases, and it was only a matter of time before it spread to all litigation. The draft envisages wide-ranging “case management orders” in all cases.

Fourthly, the draft rules define “information” as including “oral evidence”. The document includes “substantive hearing” instead of proof or debate, a change which seems otiose but essentially harmless in its overall context. By contrast, defining evidence as a species of information is peculiar and confusing. The two terms denote distinct concepts completely. Aesop’s vexatious shepherd initially conveys information, or rather misinformation, to his village that a wolf is about to wreak havoc, but has no evidence to support his assertion that the predator is anywhere nearby.

These innovations concerning proofs are fraught with problems. The rule headed “Orders about presenting information” empowers the court to direct the “information” to be led at a hearing and the manner of its presentation. This includes restricting information to specific issues or sources, requiring a party to lodge a specific document or item or to present information from a specific witness.

Perhaps these provisions are designed to facilitate and encourage the lodging of affidavits and recordings instead of the leading of parole evidence, or to compel parties to agree written evidence, but taken literally they seem to authorise the court to direct a party to lead evidence that may be inimical to their own case and which they would undoubtedly choose to omit were that option open. This is strange territory, appearing to concern substance and not merely form.

Adopting rules which so obscure the boundaries, roles and responsibilities lying between inquisitorial and adversarial procedure would be a recipe for complaints by clients who, having had to enter such a halfway house, then lose their case. If this draft is enacted solicitors will have to clarify to would-be litigants that although they will bear the funding and the risks, control of the presentation of material and indeed the entire agenda rests with the court and not with them.

Andrew Stevenson is secretary of the Scottish Law Agents Society. This article first appeared in The Scotsman.