Simple procedures for Netflix generation

Consumers can do almost anything online these days, from ordering a takeaway to finding out why that mysterious direct debit keeps coming out of their bank account each month. Soon, members of the public will even be able to use the internet to bring cases to the Sheriff Court.

From 28 November, non-personal injury claims, such as contract disputes and debt recovery, for up to £5,000 will have to be brought to Court in the form of a new “simple procedure”. A similar simple procedure for personal injury claims is expected next year.

Simple procedure is breaking new ground – it marks the first time in Scotland that claimants will be able to use an online portal to launch and run court action. The procedure will replace two existing systems: small claims running to £3,000; and summary causes from £3,001 to £5,000.

These are the most significant changes to “low-value” claims since the 1971 and 1907 Sheriff Court (Scotland) Acts and mark a major turning point. It is anticipated that the new simple procedure cases will be dealt with in Sheriff Courts throughout Scotland by Summary Sheriffs, a new Scottish judicial role heralded by the Courts Reform (Scotland) Act 2014. Sheriffs will also be able to deal with such cases.

Online processing of civil court cases is a major change for the Scottish legal system. By the time personal injury claims are added to the portal, which is anticipated to be around the middle of next year, more than 60 per cent of civil business in the Sheriff Courts will be processed online.

The switch to online processing is being made possible by the introduction of a digital Integrated Case Management System (ICMS) by the Scottish Courts & Tribunals Service (SCTS). The aim of the reforms is to speed up the court process and make justice more affordable and accessible for litigants.

As well as starting an action online, by lodging a “Claim Form”, parties will be able to submit documents for their case, pay any fees due and track the process of their case on the internet. It may not be as exciting as watching a boxset on Netflix, but it marks a sea-change for the system.

It isn’t just the method that’s changing. The simple procedure is designed to be user-friendly, allowing members of the public – rather than just lawyers – to use the system. Instead of legal jargon and very formal terms, the new procedure uses “plain English” wherever possible. For example, cases are now “paused” instead of being “sisted”.

Flow-chart diagrams are used so litigants can understand each stage of the process. The documents involved in the procedure will use headings that are phrased as questions to help guide litigants through the system.

Speed is at the heart of the reforms. Sheriffs must make first written orders in the case within two weeks of a “Response Form” being received from the person, called the Respondent in simple procedure, against whom the claim is brought.

Instead of holding a hearing of evidence, sheriffs will be able to organise case management discussions to identify the issues between the parties and to work out the best way of resolving the problem. They are able to refer litigants to “alternative dispute resolution”, such as mediation, or indicate an intention to make a decision without any hearing. The prospect of every claimant, therefore, “having a day in court” is diminished.

Sheriffs are also given power to dismiss a claim at any time, without any hearing or prior indication that a decision without a hearing is intended. That power can be exercised if the sheriff considers the case “obviously has no real prospect of success” or is obviously incompetent. Equally, a claim can be decided at any time if the response to it is obviously incompetent.

Although they may be called “simple”, the rules and forms for the new procedure run to a beefy 253 pages. With that plain English, the intention is clearly to make the new procedure open and accessible to all. Equally, though, we anticipate that lawyers may frequently be involved in the new process. Indeed, both the Claim Form and the Response Form require fairly detailed and extensive information and, with the prospect of the claim being decided simply on the basis of those forms, all litigants who take part in the new simple procedure will wish to “get it right first time”.

It seems clear the Scottish Courts’ move to online processing will not end with simple procedure. Earlier in 2016, in a speech to the Council of the Law Society of Scotland, Lord Carloway, the Lord President, discussed a five-year redesign of the courtroom to reflect the 21st century by fully embracing IT. This culture change starts with simple procedure from 28 November.

Gillian Rushbury is a Partner with BLM