Philip Knight reflects on how small claims are handled 16 months since the rules changed.
The legal process for raising low value claims in Scotland, referred to as Simple Procedure, has been in place since November 2016. Its purpose is to make litigation more accessible for those with even the smallest of claims.
It replaced the old Small Claims Procedure for claims up to £3,000 and Summary Cause Procedure for claims up to £5,000.
Simple Procedure is designed to provide a speedy, inexpensive and informal way to resolve disputes where the monetary value does not exceed £5,000.
It allows you to raise proceedings without the need to instruct a solicitor and aims to be simple to follow with the relevant forms taking a question and answer format.
You may decide to raise a Simple Procedure claim for the payment of a sum of money; the return or delivery of goods, for example, something you have paid for online and was not delivered; or for the completion or performance of a service, for example, a contract with a tradesperson.
However, the value of the claim must not exceed £5,000.
The cost to raise a Simple Procedure is £18 for claims below £200 and £100 for claims between £200 and £5,000.
The relevant forms are available on the Scottish Courts & Tribunals Service website and once completed need to be served on the respondent by recorded delivery mail or by sheriff officer.
The sheriff clerk at a sheriff court will be able to provide help and guidance.
In due course, the process of raising and responding to Simple Procedure claims will be done online.
In implementation of that strategy, this month the Scottish Courts & Tribunals Service launched Phase 1 of the project known as Civil Online, allowing secure system access, as well as access to early functionality of what will be a fully online transactional court process.
At the end of the claim and once the sheriff has issued his decision, expenses will need to be awarded. As a general rule of thumb, the party who succeeds can obtain an award of expenses. These expenses can include the cost of any solicitor employed by the successful party and loss of wages and travelling expenses of the successful party and any witnesses.
If the value of the claim is £200 or less there will usually be no award of expenses.
If the claim is between £200 and £1500, the maximum amount of expenses which can usually be awarded is £150.
If the claim is between £1,500 and £3,000, the maximum amount of expenses is 10 per cent of the value of the claim.
However, for claims where the value is between £3,001 and £5,000, the expenses follow the general rule that whoever is unsuccessful pays the costs of the other party.
As such, you should always consider the merits of succeeding if you sue for the maximum sum of £5,000 to avoid a nasty surprise with an award of expenses, especially if one party has a solicitor as these expenses could be significantly higher. The Simple Procedure rules are definitely focusing claimants’ minds prior to raising proceedings and the interventionist approach by the sheriffs is resulting in many more claims being resolved at an earlier stage.
The Scottish Civil Justice Council is currently reviewing Simple Procedure to assess how the rules are performing.
There is a public consultation which runs until 31 May and all responses will then be evaluated and a full report will be published on its website.
Philip Knight is a managing associate and heads up the litigation practice in Scotland for Womble Bond Dickinson