Scottish Procedural Reform – new civil court rules?

"This task is an ambitious but a necessary one: to build a civil justice system which makes more sense to someone born at the turn of the millennium than to someone born in the previous two centuries." (Lord Carloway, Chair of the Scottish Civil Justice Council)

The Scottish Civil Justice Council has now reached part 3 of the exercise to modernise, consolidate and harmonise the existing rules of Scotland's highest civil court, the Court of Session, and its local civil (sheriff) courts. The Council first produced its vision for how a civil action in the future would be progressed. It has now produced a worked example of the rules which it proposes will implement that vision and has requested feedback from within the profession (from the judiciary, practitioners and officials) on those.

The current drafting is likely to change in parts. But, for now, the most significant change is likely to be that one single set of rules will govern procedure for most cases with a value of more than £5,000 within both the local sheriff courts and the Court of Session. Currently, there are two separate procedures and there exist differences in how actions are commenced and how they are managed once raised. For there to be greater uniformity would be welcome. Albeit, it is currently unclear how the new rules will interact with the bespoke procedures already in place for certain types of action, such as for personal injury cases.

The draft rules envisage significant case management by the judiciary, with a single judge or sheriff, where practicable and appropriate, assigned to hear a case from start to finish and who will be afforded significant case management powers. Those are listed and include the ability to order a) a party to provide further information or clarification on a particular matter, b) parties to lodge or exchange information and, significantly, c) what information is to be led at an evidential hearing and the manner of its presentation.

Case management does already exist in Scotland. It is used successfully in commercial and family cases and can be requested in other complex matters. To see its use widen is not therefore surprising, but agents will be watching the proposed extension to the courts case management powers closely, particularly those which relate to the presentation of evidence. It is not clear at this stage whether a party could be directed to lead evidence at proof (civil trial) which, if the choice rested with them, they would choose to omit.

The rules also aim to implement greater structure and uniformity around pre-action correspondence which is not already captured within any applicable compulsory pre-action protocol. With parties expected to engage within that structure and the pursuer asked to declare that this has occurred before the court papers can be stamped for service on the defender. For property damage claims this would be helpful given that no pre-action structure or protocol currently exists for cases of that type.

The consultation on the draft rules has recently closed. The Council will now publish and analyse the responses and set out proposed next steps to deliver on the Rules Rewrite project.