OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

Journal
New Rules
May 2002 Volume 47 No 5 36
be stated. In the paragraph of the statement of claim
dealing with any treatment received by the pursuer (or
the deceased in the case of a death claim) the name of
every medical practitioner by whom and every hospital
or other institution in which such treatment was given
must be stated.
With the summons must be lodged a statement of
valuation of claim. The form for this provides for
different heads of damages being stated together with
details of what interest is being claimed.The statement
must also include a list of supporting documents, and
there must be lodged along with the summons all
medical reports available to the pursuer on which he
may rely. If no medical report is lodged the pursuer must
specifically state that there is no such report.
The summons may include a specification of documents
for which a form is provided in the rules. This form
includes the standard documents called for in a
reparation action.
The copy summons served on the defender must be
accompanied by a copy of the statement of valuation of
claim. The copy summons contains a different form of
response from that in other actions for payment. This
form of response gives the defender the opportunity to
answer the pursuer’s claim in detail, including the facts of
the case and the heads of damage.
If the defender lodges a form of response the action
continues as described above for other summary
causes. If the summons contains a specification of
documents, the sheriff clerk makes an order granting
commission and diligence when the form of response is
lodged. If the defender objects to the specification he
must lodge an incidental application to that effect before
the return day. This will then be determined on the
calling date.
Other rules applying to actions of damages for personal
injuries (e.g. provisional damages and intimation to
connected persons) are similar to those for ordinary
causes.
SMALL CLAIMS
The new Small Claim Rules provide for less of a
departure from the present procedures than is the case
with summary causes. The most notable difference is
that there is only one body of rules for all small claims
and not, as under the present provisions, separate rules
for actions for payment of money only and for other
actions. It is also implicit in the new rules that a case
should be disposed of at the first hearing if at all
possible.
As at present a party may be represented by an
authorised lay representative throughout the whole
proceedings. It is clearly envisaged in the rules that in
many, if not most, small claims, parties will not be
represented by any legally trained person.
Summons, copy summons, claim, statement of claim and
form of response
The new small claim provisions for the summons, claim
and statement of claim are broadly similar to those for
summary causes and call for no comment.
There are two forms of copy summons which may be
served on a defender: one for actions for payment of
money in which the defender may apply for a time to
pay direction or time order; and one for all other actions.
As in the case of a summary cause, the copy summons
contains a form of response. However, the form of
response does not provide that a defender must state
his defence in writing. Instead, it provides that he should
state an intention to defend the action, in which case he
must return the form of response to the sheriff clerk by
the return day and must then attend court on the
calling date.
The new small claim rules provide that a defender may
state a counterclaim, and this is of course a significant
change from the existing procedure. A defender who
wishes to state a counterclaim may do so either in
writing in the form of response or orally at the hearing
of the case on the calling date.
Undefended action
The small claim provisions for undefended actions are
broadly similar to those for summary causes.
Recall of decree
Again the small claim provisions are essentially the same
as those for summary causes.
The Hearing
If a defender lodges a form of response the case must
call in court for a hearing on the calling date.
The rules provide that any hearing is to be conducted
“as informally as the circumstances of the claim permit”.
The procedure to be adopted is such as the sheriff
considers to be fair, best suited to clarification and
determination of the issues before him, and which gives
each party a sufficient opportunity to present his case.
This is in conformity with the policy of making small
claim procedures as accessible and user-friendly as
possible to those who are not legally qualified.
As in the case of a summary cause, the sheriff is
required first to ascertain the factual and legal basis of
the claim and any defence and to seek to negotiate a