Lewis Richardson

The three cases which formed the judgment in Cabot were raised under the new simple procedure which was brought into force on the 28 November 2016 and applies to all monetary claims worth less than £5,000. Rules are presently being drafted to extend the procedure to personal injury claims and it is expected that these will come into force later this year. Cabot is therefore worth consideration and clarifies the position in respect of the court’s powers in undefended cases.

The three appeals before the Sheriff Appeal Court were all raised in Hamilton Sheriff Court but decided by different sheriffs. There were a further 17 appeals pending the outcome of the appeal in Cabot. It is apparent from one of the sheriff’s notes that a number of these cases had been dismissed due to failure by Cabot to produce documentation relevant to the claim. The practice therefore appears to have developed where the sheriff ordered the claimant to produce the documentation even if the case was undefended.

However, if a claim is undefended the inference is that it is accepted that the debt is due. The question was therefore whether the sheriffs had gone beyond their powers. The basis of the sheriffs’ decisions was that the simple procedure rules coupled with the common law under the doctrine of pars judicis (what a judge has a duty to do) allowed them to make the orders complained of. Pars judicis applies in a situation where the court is required to make or refuse an order even where the point is not taken by either party.

Sheriffs have a discretion in granting decree in absence and decree would only be refused in very limited circumstances. Did simple procedure change this? The new rules certainly encourage, in defended cases at least, judicial intervention and, in the words of the Sheriff Appeal Court, a more inquisitorial approach to be taken. The sheriffs considered this to mean that they had a responsibility to make enquiries even where the action was undefended. The Sheriff Appeal Court disagreed and held that the sheriffs overstepped the mark in ordering production of documents relevant to the claims. Cabot’s appeals were therefore allowed.

What can we take from this? Apart from indicating that if sued by a company like Cabot you may be well advised to defend the claim and demand production of the document underpinning it, the case outlines the limits of shrieval power in undefended claims. It is striking that a simple procedure case has resulted in a 40-page judgment from the Sheriff Appeal Court addressing this fundamental point. It is also of note that the sheriffs in these cases all, according to the Sheriff Appeal Court, misinterpreted and misapplied the simple procedure rules. If this suggests to you that simple procedure is turning out, in some respects at least, to be less than simple, then you would be correct.

One of the key goals of simple procedure was to make it straightforward for party litigants to raise and conduct without a lawyer, thereby limiting expenses. However, expenses arguments continue to abound. It is therefore perplexing that to understand the position on expenses a litigant would require to examine the rules, primary legislation and a statutory instrument and, even then, they may be none the wiser!

There have been several reported and unreported decisions on expenses which illustrate the fact that expenses questions are continuing to pose difficulties for both practitioners and the judiciary. If simple procedure is expected to be understood by party litigants then it cannot be desirable for them to require to consider not only the rules and statutes but also case law.

The rules are developing and the Scottish Civil Justice Council, who drafted the rules, recently closed a consultation in which it sought views on how the simple procedure rules were working in practice. Whether this consultation will result in any amendment to the rules remains to be seen.

As above, details of the simple procedure rules to deal with personal injury claims are awaited. It remains to be seen whether they will cause some of the same difficulties that have affected monetary claims thus far. The Scottish Civil Justice Council is also currently re-writing the civil procedure rules for all claims in Scotland. For now it is a case of watch this space.

Lewis Richardson is an associate at BTO LLP