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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
Journal President The Preston front Roger Mackenzie finds that a light-hearted approach masks the serious agenda of new Society President David Preston. May 2002 Volume 47 No 5 38 To understand the understated approach and dry wit of new President David Preston, it’s probably sufficient to reveal the philosophy which he hopes will see him through his presidential year. “I don’t want to achieve immortality through work, I would rather achieve it by not dying”. He attributes the quote to Woody Allen, but turning 50 soon and with a hazardous road from Oban to Edinburgh to drive on a frequent basis, there may, as in much he says, be a hint of seriousness beneath the mirth. It’s no surprise then that he won’t commence with a grand plan. “It’s very easy for someone coming into this job to be deluded into thinking they are going to be able to change the world.You have to try and identify some priorities and then narrow them down to try and get some sort of message over, both in relation to the Portrait by Austin Lafferty relevance of the Society to the profession in a narrower sense and its wider relevance to the general public.” For the incoming President, one of his main priorities will be to revisit what it actually means to be a solicitor. “There are many different providers in the marketplace of the sort of services that solicitors provide and we’ve got to focus on comparing what a solicitor can provide on the high street with mortgage brokers, estate agents and claims companies. I firmly believe there is an added value that the badge of solicitor can deliver to the public. “There are the more obvious benefits – such as public protection from the indemnity policy and Guarantee Fund – but the added value has to be the way solicitors perceive people’s problems and needs and how they go about resolving and fulfilling them. “That solicitors are different from other professions was underlined and underscored by the decision in the
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Page 7 and 8: Journal News Obituaries LEONARD ELL
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