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settlement between the parties. If that attempt
fails he must identify and note on the summons
the disputed issues of fact and law and any facts
which are agreed. He should then, if possible at
that stage, reach a decision on the basis of the
information before him. This procedure will
almost certainly have implications for the amount
of time which will require to be provided in the
court programme for the initial hearing in a
disputed small claim.
If the dispute cannot be resolved without the
leading of evidence the sheriff must fix a further
hearing which is somewhat confusingly referred
to in the rules as a “hearing on evidence” rather
than a proof. In that event, the sheriff may indicate
what matters require to be proved and give
guidance to the parties on the nature of the
evidence to be led.
Third party procedure
There is no provision in the Small Claim Rules for
third party procedure.
Decree by default
The small claim provisions for decree by default
are similar to those in summary causes.
Hearing on evidence (proof)
Before he begins to hear evidence the sheriff
must explain to the parties the form of
procedure which he intends to adopt, bearing in
mind the circumstances of each party and
whether (and to what extent) a party is
represented. He must, if he considers it necessary
for the fair conduct of the proceedings, explain
any legal terms or expressions which are used.
Evidence will normally be given on oath or
affirmation, but the sheriff may dispense with that
requirement if “it appears reasonable to do so”.
The rules give no guidance as to the
circumstances in which such a dispensation might
be granted.
The rules specifically provide that, in order to
assist resolution of the disputed issues of fact, a
sheriff may himself put questions to parties and
witnesses.This is simply giving formal recognition
to a practice which many sheriffs have adopted
since the introduction of small claims.
The Small Claim Rules, unlike the Summary
Cause Rules, make no specific provision for the
sheriff to hear submissions from parties at the
conclusion of the evidence. In practice, if parties
are legally represented it is probable that
submissions will be allowed – indeed encouraged.
In the absence of legal representation, a different
view may be taken.
CONCLUSION
As has, I hope, been demonstrated, the new rules,
especially those for summary causes, contain
many innovations, most of them improvements
Journal
New Rules
on the existing provisions. What is reasonably
clear is that the new rules will require a greater
amount of advanced preparation by the
practitioner than under the present rules,
especially in the case of summary cause actions of
damages for personal injury.
The new rules also envisage the sheriff having to
do more preparation before a summary cause
court. It is probable that a good deal more time
will have to be spent with each defended action
on the calling date than is the case at present.The
implications for court programming, at least in the
busier courts, may be quite significant.
The Judicial Studies Committee is taking steps to
ensure that sheriffs will receive training in the
operation of the new rules. It is to be hoped that
the Law Society and local faculties will take similar
steps for solicitors. I have no doubt that
organisations such as the Citizens Advice Bureaux
will have training sessions for their volunteers
who are likely to act as authorised lay
representatives. Unfortunately, similar steps
cannot be taken for party litigants, and they, with
the new procedures as with the present, will have
to continue to undergo in-service training from
the sheriff as the case proceeds! However,
updated versions of the information leaflets for
users of both procedures are to be published,
which will no doubt be of considerable assistance.
37 May 2002 Volume 47 No 5