Simple Procedure Rules: Court Proceedings
30 November 2016
As the name suggests the procedure in making a claim for payment has been simplified as follows:
Once a claim has been lodged the court will issue a timetable which shall provide two dates;
- the last date for service of the claim; and
- the last date for a response to the claim.
These dates must be complied with. Under the new Rules there is no longer a first calling hearing at court to attend. In fact under the new Rules parties are only expected to come to court when necessary which means parties have an opportunity to win or lose without being present or heard. This decision has been made due to the new claim form demanding more detail and therefore more information is given to the Sheriff so he/she can make a decision on the papers alone if they wish. Thus making the process more prompt and cost effective.
There are 4 key outcomes to this stage of the claim, which are discussed below:
Where a response is not received by the court then the claimant sends an application for a decision to the court (which must be done within 2 weeks or the Sheriff must dismiss the claim). We anticipate that in these cases where there is no response from the debtor & an application for decision has been made on time, then the court will issue a decision awarding the sum sought in the claim form.
Time to Pay
Under the new Simple Procedure Rules the respondent can still make a ‘time to pay application’ to settle a claim by instalments or delayed payment for claims of £5,000 & under. The main thing to note is that the respondent can now make this application in three ways:
- by completing a ‘time to pay application’ and sending it to court with the completed Response Form,
- by completing a ‘time to pay application’ and giving it to the sheriff clerk at a discussion in court, case management discussion or a hearing, or
- by completing a ‘time to pay application’ and sending it to court after the sheriff has made a decision
The benefit of these changes is that the respondent can now make an application at various stages of the procedure which aims to encourage settlement terms being agreed.
Once the ‘time to pay application’ has been received the sheriff clerk must send a copy of the application to the claimant. The claimant must then indicate their consent or objection on the ‘time to pay notice’ within two weeks of receiving it. If the claimant consents the sheriff will grant the application and decide on the case & if the claimant objects it will result in an order arranging a time to pay hearing. If neither a consent nor objection is lodged the sheriff must decide the case and can grant or refuse the ‘time to pay application’.
This status is achieved when the debtor contacts the court to confirm they are in agreement with the terms written in the claim form & are agreeing to settle the amount due.
If a dispute response is sent to the court then the Sheriff must consider the case and issue the first written orders. The written orders that can be issued are:
- Refer parties to Alternative Dispute Resolution (ADR) such as mediation.
- Case Management Discussions - informal hearings which could be carried out in court or via other methods such as conference call.
- Hearing - for parties to be heard where evidence may be led.
- Indications that a decision is being made without further process i.e. without a hearing taking place.
- Dismissals or decisions on a case - if the Sheriff is of the view that the claim/defence is not going to succeed.
- It is no longer competent for a counterclaim to be lodged in response to a claim.