On 28 November 2016, Simple Procedure will be introduced to Scotland's Sheriff Courts. This procedure will apply to non-injury claims worth £5,000 or less. In this article, John Wilson looks at how, following Peter Chatterton v AXA Corporate Solutions (2016 WL04772382), Scottish credit hire claims may now be addressed under this new procedure.


Chatterton, an English county court judgement, was a timely reminder of the standard arguments advanced in credit hire claims.

The ultimate judgement was balanced and clear, setting out where the burdens of proof lie. For example, per Bent ([2011] EWCA Civ 1384), it was for the defendant, AXA, to prove there was a difference between the credit hire rate and the basic hire rate.

It was argued by the credit hire organisation (CHO) that AXA's evidence was lacking. The CHO argued that the rates evidence should be ignored because: (i) the terms and conditions were not provided; (ii) it was based on pricelists rather than firm quotes; and (iii) it was obtained three and a half years after the hire had begun. These submissions were all rejected.

The CHO also advanced various arguments supporting the requirement for a like-for-like replacement vehicle. The mitigation statement said that the claimant could: (i) only drive an automatic; (ii) regularly drove off-road or on rough terrain; and (iii) required a premium vehicle to reflect his professional status. These were all confirmed as false by the claimant at trial.

Simple Procedure

How might this have worked under Simple Procedure?

Simple Procedure applies to non-injury claims with a value of £5,000 or less. Many credit hire claims will therefore fall within this bracket.

The procedure is designed "to provide a speedy, inexpensive and informal way to resolve disputes." Sheriffs are to encourage resolution by negotiation or alternative dispute resolution, where possible and there will be a greater use of technology, including, if parties wish, access to an internet based court portal.

Sheriffs are expected to be more interventionist. Their powers are not necessarily wider, but there is more encouragement to use them. Specifically, defended cases will be reviewed by the Sheriff in private and he/she will decide to do one of five things: -

  1. Refer to alternative dispute resolution;
  2. Arrange a case management discussion;
  3. Arrange a hearing (i.e. trial);
  4. Indicate that the sheriff thinks that a decision could be made without a hearing; or
  5. Dismiss or decide the claim.

The first calling (a hearing in court where further procedure is determined) does appear to have been dispensed with, further procedure instead being determined by the sheriff summarily or in discussion with the agents.

At least initially, the current format of just having a full proof (trial) fixed, is likely to remain the norm. The new procedure is likely to be adapted, in time, to particular types of actions, of which I would expect credit hire actions to be one such type.

Standardised orders (i.e. for disclosure, etc) in credit hire claims may even follow. Unless orders are also specifically provided for. Conceivably, in the credit hire context, this will be for disclosure of the hire and repair documents; and unless orders are likely to be particularly useful when impecuniosity is claimed. This will all be familiar to those who deal with English claims.

Claims in Scotland with circumstances similar to that seen in Chatterton may see early orders for disclosure of the documents relating to the vehicle damage; for statements to be provided confirming the need for the replacement vehicle; and for the driving licence to be disclosed.

Disputes over the basic hire rate are likely to remain but the new procedure seems to open the way for disputes such as those to be determined without full evidential hearings. If the flexibility conferred on the sheriff is used effectively then the changes could revolutionise how low-value litigated credit hire claims are dealt with.

The changes, if used to their full extent, may just result in cases like Chatterton being resolved without witness evidence requiring to be heard at trial. This might just involve a round of orders followed by the sheriff having a hearing with the parties' agents, going over the statements and vouching recovered; and coming to a decision.

This all has the potential to dramatically reduce the number of court hearings; to resolve claims without expensive trials; to generally reduce costs; and to reduce claim life-cycles. At the very least, standardised orders for the recovery of necessary documentation would be welcomed, as the tactics of delay or refusal by CHOs remain one of the most frequent barriers to the swift resolution of credit hire cases.