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In general terms any person has the right to conduct their own cause in court. There is no requirement on the part of a natural person to instruct a solicitor or advocate to appear on the party’s behalf.
The general rule has exceptions. Prior to 28 November 2016, a party to an action who was a ‘non-natural person’ such as a company, limited liability partnership, other type of partnership or unincorporated association required to be legally represented. It was commonplace for company directors to try to appear in court to represent their company only to be met with a refusal on the part of the court to hear them.
The Courts Reform (Scotland) Act 2014 makes provision whereby a lay representative can, in certain circumstances, conduct proceedings on behalf of a non-natural person. Specific rules apply to simple procedure cases. Provided the court is satisfied that the conditions set out in s. 96 of the 2014 Act are complied with, no formal application process is required in a simple procedure case.
For all types of case other than simple procedure, ss. 97 and 98 set out the criteria that require to be fulfilled before permission will be granted by the court to allow the lay person to represent the non-natural person. In essence there must be an inability on the part of the non-natural person to be able to pay for legal representation, the lay representative must be a suitable person and it must be in the interests of justice to grant permission.
A prescribed form, with authorisation document, requires to be lodged with the court, which, if granted, will allow lay representation as follows:
The judge or sheriff may determine the application in chambers and can impose such conditions on the exercise of functions by the lay representative where necessary to do so in the interests of justice.
In any type of cause, including simple procedure, if the lay representative acts unreasonably in the conduct of the proceedings and an award of expenses is made against the non-natural person, the court may find the lay representative and the non-natural person jointly and severally liable for those expenses.
The procedure governing amendment of pleadings is set out in the Act of Sederunt (Rules of the Court of Session 1994) 1994 (RCS) r. 24, the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (OCR) r. 18 and, in relation to alteration of a summons, etc. in a summary cause, the Act of Sederunt (Summary Cause Rules) 2002 (SCR) r. 13.
RCS r. 24.4 provides that:
The court shall find the party making an amendment liable in the expenses occasioned by the amendment unless it is shown that it is just and equitable that the expenses occasioned by the amendment should be otherwise dealt with, and may attach such other conditions as it thinks fit.’
OCR r. 18.6 is in similar terms but SCR r. 13 makes no mention of expenses in relation to alteration of a summons, etc. in a summary cause, thus leaving it to the inherent discretion of the sheriff to make such expenses order as is appropriate.
The default position in the Court of Session and under the Sheriff Court ordinary cause rules is that the party making the amendment will automatically be found liable for the expenses occasioned by the amendment unless the motion to amend seeks an alternative expenses order and the court is satisfied that it would be just and equitable not to find the party undertaking the amendment liable. If the motion that is presented to the court is silent on the issue of expenses the default position will be, or at least should be, reflected in the court’s interlocutor.
Unless the amendment is formal in nature and does not require a period for answers, adjustment and a procedural hearing, the expenses occasioned by amendment procedure can be significant. It is all too often the case that insufficient regard is had by agents and counsel to the adverse costs award that an amendment procedure will ultimately give rise to. Often lack of early preparation or the timeous ingathering of skilled person reports leads to the record being closed before the pleadings are adequately developed and the attitude adopted is that ‘we can sort it out by lodging a minute of amendment’. But an amendment can frequently give rise to a contra account totalling thousands of pounds.
Notwithstanding any rule of court or legislative requirement in relation to solicitors’ fee charging, a solicitor has a professional obligation to issue a client with a letter of engagement in terms of the client communications section of the Law Society of Scotland’s practice rules and guidance 2011, s. B4 of which provides:
4.1 In this r. 4, unless the context otherwise requires, terms listed in the first column of r. 4.1 shall have the meanings respectively ascribed to them in the second column of that rule:
4.2 When tendering for business or at the earliest practical opportunity upon receiving instructions to undertake any work on behalf of a client, you shall provide the following information to the client in writing:
(a) an outline of the work to be carried out on behalf of the client;
(b) save where the client is being provided with legal aid or advice and assistance, details of either—
(i) an estimate of the total fee to be charged for the work, including VAT and outlays which may be incurred in the course of the work; or
(ii) the basis upon which a fee will be charged for the work, including VAT and outlays which may be incurred in the course of the work;
(c) if the client is being provided with advice and assistance or legal aid—
(i) where advice and assistance is being provided, details of the level of contribution required from the client, and
(ii) where civil legal aid, special urgency work or advice and assistance is being provided, an indication of the factors which may affect any contribution which may be required from the client or any payment which may be required from property recovered or preserved;
(d) the identity of the person or persons who will principally carry out the work on behalf of the client the identity of the person whom the client should contact if the client becomes concerned in any way with the manner in which the work is being carried out; and
(f) confirmation that if that person is unable to resolve any such concerns to the satisfaction of the client, the client may make a complaint to the Scottish Legal Complaints Commission (setting out its current contact details) about the manner in which the work is being or has been carried out, or the conduct of the person or persons carrying out the work.
The procedure relating to the two forms of commission, namely a commission and diligence for recovery of documents and a commission for examination of a witness, is set out in the Act of Sederunt (Rules of the Court of Session 1994) 1994 (RCS) r. 35, Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (OCR) r. 28 and Summary Cause Rule r. 18.
The general rule is that where a proof or evidential hearing is allowed, the successful party will be entitled to recover costs that they incurred relative to commission procedure on a party/party basis.
A commissioner, unless appointed as part of their proper judicial function as a Lord Ordinary or sheriff, is entitled to a fee. If there is a disagreement as to the amount this shall be determined by the auditor. The courts are reluctant to interfere with the auditor’s assessment.
The fees of the commissioner and clerk require to be paid at the time they are incurred.
If the commissioner’s fee is not paid timeously a motion may be enrolled by the commissioner in the action for payment of their fee and that of the clerk to the commission, or the commissioner may sue for payment in a separate action.
The commissioner’s fee is personal to them as they are acting in the capacity of judicial appointee. It should therefore not be paid to their firm if a solicitor, or faculty services if an advocate. Normal practice is to appoint an advocate as commissioner in Court of Session proceedings and a solicitor in sheriff court proceedings.
Shorthand writer’s fees are the responsibility of the party executing the commission in the first instance.
Historically, the auditor was likely to disallow the fees of counsel in relation to a commission for the recovery of documents even in Court of Session proceedings. The instruction of counsel in the execution of any commission in modern day practice is subject to any sanction requirements that exist and where sanction in the sheriff court is granted for the proceedings, counsel’s involvement in a commission will remain subject to the scrutiny of the auditor on the grounds of reasonableness.
A tender is a judicial offer by a party to pay a part (or in rare cases all) of what their opponent is asking for after a court action is raised. It cannot be made pre-litigation. It differs from extra-judicial, or informal, offers in that a tender carries potential expenses implications if not accepted, or not accepted quickly enough. The use of a tender is designed to put pressure on a pursuer to settle. To be effective in that regard, the tender has to be tempting to a pursuer having regard to the strength of the pursuer’s case and a realistic view of its value.
The tender can be made in the defences where part of the claim is admitted and averments are made tendering the sum admitted to be due. This method is now infrequently used. The much more commonly encountered form of tender is where a defender lodges a minute of tender, without any admission of liability and reserving their whole rights and pleas.
Various different types of tender are discussed below. Unlike pursuers’ offers, tender procedure is not enshrined in rules of court but instead the common law. Tenders usually arise in personal injury or payment actions but can potentially be made in any type of action. A tender does not require to include a monetary offer. A tender has been made in an action of defamation by offering a full retraction of the defamatory remarks but making no offer of damages.
The courts encourage settlement of actions and have taken the approach of approving innovative or novel wording in tenders.
Lord McCluskey in Ferguson v MacLennan Salmon Co Ltd expressed the view ‘[t]he court will always encourage the settlement of actions rather than their continuation till resolved by the court’. This was the context of:
‘the creation of minutes … fashioned on traditional minutes of tender if they are designed to remove from one party the risk of having to pay expenses for a litigation which he can demonstrate would have been unnecessary in whole or in part if the offer contained in the minute had been accepted’.
There is no prescribed form of tender, although Appendix 4 contains suggested styles. However, there are two basic requirements for a tender to be effective.
The vast majority of employment disputes are dealt with by employment tribunals. The employment tribunal has exclusive jurisdiction over a large number of statutory claims. The types of statutory claims that can be advanced before a tribunal include claims relating to:
• redundancy rights and business transfers;
• maternity, adoption, paternity and parental leave and flexible working;
• discrimination and equal pay;
• trade unions and union members;
• working time and holiday pay;
• unlawful deduction of wages.
The general rule applied before the civil courts that an award of expenses follows success in a case does not apply in employment tribunal claims. The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 at rr. 74–84, provide a statutory framework whereby a party to proceedings can apply for a costs order to recover at least part of their outlay in the event that they are successful in pursuing or defending a claim. The rules are in the following terms:
COSTS ORDERS, PREPARATION TIME ORDERS AND WASTED COSTS ORDERS
(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression “wasted costs”) shall be read as references to expenses.
(2) “Legally represented” means having the assistance of a person (including where that person is the receiving party’s employee) who—
(a) has a right of audience in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates’ courts;
(b) is an advocate or solicitor in Scotland; or
(c) is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.
(3) “Represented by a lay representative” means having the assistance of a person who does not satisfy any of the criteria in paragraph (2) and who charges for representation in the proceedings.
Costs orders and preparation time orders
(1) A costs order is an order that a party (“the paying party”) make a payment to—
(a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative;
There seems to be little doubt now that a motion for an interim award of judicial expenses is competent in the Court of Session, which award can be for a specific sum without the need for taxation. The position, however, is less clear for Sheriff Court proceedings due to the different wording of the relevant rules.
Motions for interim awards of expenses are relatively rare, there being only a handful of reported decisions, all from the Court of Session.
The rules of the Court of Session provide that where expenses are found due to a party in any cause the court shall:
(a) pronounce an interlocutor finding that party entitled to expenses and subject to there being no modification in legal aid cases, remit the cause to the auditor for taxation; and
(b) unless satisfied there is special cause for not doing so, pronounce an interlocutor decerning against the party found liable in expenses as taxed by the auditor. This is without prejudice to the right to object to the auditor’s report.
Therefore, on the face of it, a taxation is required for any award of expenses, whether interim or final.
It is commonplace for awards of expenses to be made against a party who, for example, is unsuccessful in moving or opposing a motion, or who loses a procedure roll hearing, or who creates needless procedure during the course of an action. And all practitioners in the Court of Session will be familiar with the standard wording of the interlocutor that follows on from that, ‘remits the account to the auditor to tax and report. And decerns’.
Decerniture simply means a decree or sentence of a court. So, the rule simply confirms that as soon as the account of expenses is taxed, and in the absence of any objections to the auditor’s report, a decree for the taxed amount shall automatically follow.
The position in Sheriff Court ordinary actions is set out in the two versions of the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (OCR) r. 32.1.
For actions commenced prior to 29 April 2019 the rule states:
32.1 Expenses allowed in any cause, whether in absence or in foro contentioso, unless modified at a fixed amount, shall be taxed before decree is granted for them.
Abandonment is the term given to a situation where a party, usually the pur- suer, (although it is equally applicable to a defender or other party) gives up on their claim.
As counterclaims are treated as separate causes, the abandonment of the pursuer’s action has no effect on the counterclaim. Similarly, the pursuer’s liability for expenses occasioned by the abandonment does not include the expenses of the counterclaim.
Abandonment can arise at common law or under Rules of Court. A minute of abandonment is lodged with the court, accompanied by a motion setting out clearly what the party wishes the court to do. For further consideration of the procedure see MacPhail, Sheriff Court Practice.
The relevant rules of court provide as below.
COURT OF SESSION
CHAPTER 29 ABANDONMENT
Abandonment of actions
(1) A pursuer may abandon an action by lodging a minute of abandonment in process and—
(a) consenting to decree of absolvitor; or
(b) seeking decree of dismissal.
(2) The court shall not grant decree of dismissal under paragraph (1)(b) unless—
(a) full judicial expenses have been paid to the defender, and to any third party against whom the pursuer has directed any conclusions, within 28 days after the date of intimation of the report of the Auditor on the taxation of the account of expenses of that party; and
(b) where abandonment is made in a proof or jury trial, the minute of abandonment is lodged before avizandum is made in the proof or the charge to the jury by the presiding judge has begun in the jury trial, as the case may be.
(3) If the pursuer fails to pay the expenses referred to in sub-paragraph (a) of paragraph (2) to the party to whom they are due within the period specified in that sub-paragraph, that party shall be entitled to decree of absolvitor with expenses.
Application of abandonment of actions to counterclaims
Rule 29.1 shall, with the necessary modifications, apply to the abandonment by a defender of his counterclaim as it applies to the abandonment of an action.
Abandonment of petitions, minutes and notes
(1) A petition, minute or note may be abandoned by the petitioner, minuter or noter, as the case may be—
(a) enrolling a motion for abandonment of the cause; and
(b) intimating the motion to every person who lodged answers.
Many court actions will involve the instruction of skilled persons to investigate and report on matters pertaining to the dispute. Ultimately, the purpose is to assist the court in determining issues with which it is not familiar. Such evidence may, of course, assist parties prior to or during the conduct of a litigation to achieve an extra-judicial resolution.
There is no definition of ‘skilled’ laid down in the rules. According to MacPhail, there is no rigid rule that the person must possess some technical qualification. It is thought that they ‘must however possess either a theoretical acquaintance with matters of scientific knowledge or practical experience of the rules of any trade, manufacture or business with which men of ordinary intelligence are not likely to be familiar’.
Before the costs payable to a skilled person are recoverable by the entitled party from the opponent, the skilled person requires to be certified by the court as a skilled person. If that is done then it is the auditor’s job to assess the reasonableness of the charges that the skilled person has levied.
Such witnesses in the past have been referred to as expert witnesses or skilled witnesses. The correct terminology is skilled person to reflect the phraseology in the court rules.
RELEVANT COURT RULES RE CERTIFICATION OF SKILLED PERSONS
For actions commenced prior to 29 April 2019, the rule in relation to the certification of skilled persons is found in the Act of Sederunt (Fees of Solicitors and Witnesses in the Sheriff Court) (Amendment) 2011, which states:
1. (1) If at any time before the Diet of Taxation the Sheriff has granted a motion for the certification of a person as skilled, charges shall be allowed for any work done or expenses reasonably incurred by that person that were reasonably required for a purpose in connection with the cause or in contemplation of the cause.
(2) A motion under paragraph 1 may be granted only if the Sheriff is satisfied that (a) the person was a skilled person and (b) it was reasonable to employ the person …
(3) The charges which shall be allowed under paragraph 1 shall be such as the Auditor of Court determines are fair and reasonable …
The motion for certification can be presented at any time before the diet of taxation.
PURSUER’s OFFER GROSS OF BENEFITS COURT OF SESSION
[SURNAME OF PERSON SIGNING] for the pursuer states to the court, without prejudice to, and under reservation of their whole rights and pleas, under and in terms of Chapter 34A.4 of the Rules of the Court of Session 1994 (as amended) the pursuer offered and hereby offers to accept from the [defender OR defenders jointly and severally] the sum of [AMOUNT IN WORDS] (£[AMOUNT IN FIGURES]) STERLING inclusive of interest to the date of this offer, of which £[AMOUNT OF BENEFITS ATTRIBUTABLE TO LOST EARNINGS] represents compensation for earnings lost during the relevant period, £[AMOUNT OF BENEFITS ATTRIBUTABLE TO CARE] represents compensation for the cost of care during the relevant period and £[AMOUNT OF BENEFITS ATTRIBUTABLE TO LOSS OF MOBILITY] represents compensation for loss of mobility during the relevant period, in terms of the Social Security (Recovery of Benefits) Act 1997, together with the expenses of process to date as taxed [in full satisfaction of the conclusions OR in satisfaction of the [CONCLUSIONS SATISFIED BY OFFER]] of the summons.
IN RESPECT WHEREOF
IN THE COURT OF SESSION
Court Ref: [COURT REFERENCE]
MINUTE OF PURSUER’s OFFER
in the cause
[NAME OF PURSUER], PURSUER
[NAME OF DEFENDER], DEFENDER
PURSUER’s OFFER GROSS OF BENEFITS SHERIFF COURT
[SURNAME OF PERSON SIGNING] for the pursuer states to the court, without prejudice to, and under reservation of their whole rights and pleas, under and in terms of Chapter 27A.4 of the Ordinary Cause Rules 1993 (as amended) the pursuer offered and hereby offers to accept from the [defender OR defenders jointly and severally] the sum of [AMOUNT IN WORDS] (£[AMOUNT IN FIGURES]) STERLING, inclusive of interest to the date of this offer, of which £[AMOUNT OF BENEFITS ATTRIBUTABLE TO LOST EARNINGS] represents compensation for earnings lost during the relevant period, £[AMOUNT OF BENEFITS ATTRIBUTABLE TO CARE] represents compensation for cost of care during the relevant period and £[AMOUNT OF BENEFITS ATTRIBUTABLE TO LOSS OF MOBILITY] represents compensation for loss of mobility during the relevant period, in terms of the Social Security (Recovery of Benefits) Act 1997, together with the expenses of process to date as taxed [in full satisfaction of the craves OR in satisfaction of the [CRAVES SATISFIED BY OFFER]] of the initial writ.
Prior to 1 January 2006, there was no suggested structure for the handling of personal injury claims in Scotland. There was no protocol to give an outline of what should be done and when. Any claims that settled pre-litigation generally followed the pattern of intimating a claim and waiting for a decision from the insurer (which could take an inordinate length of time). Agents took as long as they wanted to ingather the quantum information and disclosed what they wanted to the insurer in the hope an acceptable offer would be received. There may then have followed some negotiation and hopefully, settlement, failing which litigation would ensue at some point. The timescales for resolution of a claim varied enormously depending on which insurer was involved and how efficient parties were in carrying out the claims handling process.
If a claim did settle, costs in accordance with Ch. 10 of the Law Society of Scotland’s General Table of Fees were generally paid by insurers in addition to the compensation, but it was by no means compulsory for the insurers to make any payment of pre-litigation costs.
In 2005, Ch. 10 was abolished. Around the same time, the Law Society of Scotland and the Forum of Scottish Claims Managers devised a pre-action protocol for personal injury claims. This voluntary protocol – commonly referred to as VPAP – applies to personal injury claims, valued at £10,000 or less, that settle on or after 1 January 2006 with the exception of clinical negligence, disease and illness cases.
With the advent of the Compulsory Pre-Action Protocol (CPAP) in 2016, the applicability of VPAP is fast diminishing for claims made by adults but it will, subject to the terms of VPAP, continue to apply to any accident claim that occurred prior to 28 November 2016. Claims for children arising from accidents prior to that date can therefore still be subject to VPAP, since a child’s claim will not usually time bar until their nineteenth birthday.
The aims of VPAP are:
• to put parties in a position where they may be able to settle cases fairly and without litigation;
• to ensure the early provision of reliable information reasonably required to enter into meaningful discussions on liability and quantum; and
• to enable appropriate offers to be made either before or after litigation commences.
It is the responsibility of the entitled party to have an account of expenses prepared in accordance with r. 2.1 of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019 (the 2019 Rules), which states:
An account of expenses must—
(a) set out in chronological order all items in respect of which payment is claimed;
(b) list in separate columns—
(i) the charges claimed for work carried out by the entitled party’s solicitor; and
(ii) the outlays claimed; and
(c) include a statement as to whether or not the entitled party will bear the burden of the value added tax referred to in rule 6.1.
Rule 6.1 provides:
(1) Where work done by a solicitor constitutes a supply of services in respect of which value added tax is chargeable by the solicitor, there may be added to the charges allowed in respect of that work under Chapter 3 an amount equal to the value added tax chargeable on those charges, unless the entitled party will not bear the burden of the value added tax.
(2) Where an outlay allowed under Chapter 4 is a charge for the supply of goods or services on which the supplier has charged value added tax, the amount of the value added tax charged may only be allowed as an outlay when the entitled party will bear the burden of the value added tax.
The account will therefore normally contain four columns. The left column showing the date of the work, the next column containing a concise narrative of the work undertaken, the next column showing outlays incurred and the fourth column showing fees. The columns for outlays and fees are totalled, VAT – if applicable – is added and a total is shown at the end (see 23.16). The auditor will mark any abatements or additions on the left side of the account. However, it is not normal practice for the auditor to append reasons for any abatements.
Any outlays claimed within the account of expenses require to be supported by suitable vouching presented in chronological order and numbered appropriately to correspond with the relevant item being claimed in the account of expenses.
I welcome this opportunity to provide the foreword to Iain Nicol and James Flett’s book. I regard it as an honour to be asked to do so.
Iain is a well-respected legal practitioner in Scotland and is regarded as an expert in civil litigation in our jurisdiction, particularly in the field of personal injury law, where he and I have viewed our respective clients’ interests, and prospects, from rather opposite ends of the telescope! Iain is a part-time sheriff and Fellow of the Association of Personal Injury Lawyers, he is accredited by the Law Society of Scotland as a specialist in personal injury law, and is convenor of their Civil Justice Committee, on which I have served with him for a number of years. He is a past member of the Scottish Civil Justice Council’s Costs and Funding Committee. Most importantly of all, he has been and remains a hugely experienced and successful personal injury lawyer. He has had to grapple with the intricacies and details of our system in Scotland that governs the way in which parties to a civil litigation both pay for their own legal representation, and reclaim that from their opponent when, and if, successful.
James, as chairman of one of Scotland’s largest and most respected firms of law accountants, has extensive knowledge and experience of all aspects of the taxation process, from the preparation of judicial accounts, negotiation of the accounts, to the conduct of lengthy and complex taxations.
So, I cannot think of a better qualified duo to author Expenses: A Civil Practitioners Handbook.
I was trained and mentored early on in my own career by a senior partner in my firm who carried around in his head more knowledge about the dark art of expenses than anyone else at that time, and subsequently became a hugely respected auditor of the Court of Session. One of the complaints I had at that time was that that knowledge and experience was inaccessible other than by mind-reading or, in his case, excellent training. Iain and James’s book provides a much needed and welcome guide for a busy practitioner who does not have the time to trawl through the relevant legislation, which is, of course, available but often seemingly impenetrable.
Scheme for the Accounting for and Recovery Of Counsel’s Fees August 2020
1. Status and scope of the Scheme
1.1. The Scheme sets out the basis upon which any counsel to whom the Scheme applies accepts instructions.
1.2. Advocates hold a public office to which they are admitted by the Court of Session. Nothing in the Scheme affects the professional status or obligations of counsel and, in the event of any conflict between the terms of this Scheme and the professional status or obligations of counsel, the latter shall prevail.
1.3. The Scheme applies to any counsel who is a subscriber to Faculty Services Limited.
1.4. Counsel who is not a subscriber to Faculty Services Limited may (subject to compliance at all times with the professional status and obligations of counsel) accept instructions on the basis of his or her own terms and conditions. Counsel who has not adopted such terms and conditions shall be assumed to have adopted the Scheme.
1.5. An instructing person who instructs counsel to whom the Scheme applies accepts the provisions of the Scheme and accepts a professional obligation to pay counsel’s fees in accordance with the Scheme.
1.6. The Scheme does not apply to work undertaken or services provided by counsel otherwise than as a practising advocate.
2.1. In the Scheme, unless the context otherwise requires:-
“counsel” means a practising advocate;
“Fees Committee” is the committee appointed by the Dean of Faculty under paragraph 9 of the Scheme;
“instructing person” means the instructing solicitor, commercial attorney, or person approved under the Faculty of Advocates Direct Access Scheme who instructs counsel. In the case of a solicitor or a commercial attorney, where a correspondent firm is referred to in the letter of instruction, instructing person means that correspondent firm;
“List of Defaulting Solicitors and other Instructing Persons” means a list of solicitors and instructing persons whose name has been placed on the list by authority of the Dean by reason of failure to pay counsel’s fee;
“subscriber” means a subscriber to Faculty Services Limited; and
“the Scheme” means this Scheme.
2.2. In the Scheme, unless the context otherwise requires, the masculine includes the feminine and references to the singular include the plural, and vice versa in each case.
Simple procedure was introduced by the Courts Reform (Scotland) Act 2014 to replace the procedure for small claims as well as some summary cause actions raised on or after 28 November 2016. The Simple Procedure Rules (SPR) are set out in Sch. 1 to the Act of Sederunt (Simple Procedure) 2016. The various forms to be used in simple procedure are set out in Sch. 2. It should be noted that the small claims rules still apply to actions raised before 28 November 2016.
The underlying principles of simple procedure are set out in SPR r. 1.2:
(1) Cases are to be resolved as quickly as possible, at the least expense to parties and the courts.
(2) The approach of the court to a case is to be as informal as is appropriate, taking into account the nature and complexity of the dispute.
(3) Parties are to be treated even-handedly by the court.
(4) Parties are to be encouraged to settle their disputes by negotiation or alternative dispute resolution, and should be able to do so throughout the progress of a case.
(5) Parties should only have to come to court when it is necessary to do so to progress or resolve their dispute.
Simple procedure must now be used for any new case raised if it is a type of case listed in s. 72(3) of the Courts Reform (Scotland) Act 2014 as a relevant claim namely:
(a) proceedings for payment of a sum of money not exceeding £5,000,
(b) actions of multiplepoinding where the value of the fund or property that is the subject of the action does not exceed £5,000,
(c) actions of furthcoming where the value of the arrested fund or subject does not exceed £5,000,
(d) actions ad factum praestandum, other than actions in which there is claimed, in addition or as an alternative to a decree ad factum praestandum, a decree for payment of a sum of money exceeding £5,000,
(e) proceedings for the recovery of possession of heritable property or moveable property, other than proceedings in which there is claimed, in addition or as an alternative to a decree for such recovery, a decree for payment of a sum of money exceeding £5,000.
The court possesses an inherent power to make awards of expenses as it sees fit, in accordance with the principles of fairness and reasonableness and provided that in doing so it does not breach any statutory provision, such as the rules on Qualified One-Way Cost Shifting.
To that end, the court has always had the power to reflect its displeasure at the way a litigation is conducted through an award of expenses. This can be against a party to the action or against a legal representative. The power to make an award against a legal representative tends to arise relatively infrequently and only in the context of reprehensible conduct that has needlessly wasted time and expense.
At the time of publication, s. 11 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 has yet to come into force. Section 11 is in the following terms:
Awards of expenses against legal representatives
11.—(1) This section applies in civil proceedings where the court considers that a legal representative of a party to the proceedings has committed a serious breach of that representative’s duties to the court.
(2) The court may make an award of expenses against the legal representative.
(3) This section is subject to any limitations that may be specified in an act of sederunt under section 103(1) or 104(1) of the Courts Reform (Scotland) Act 2014.
An Act of Sederunt has been in draft form since 2019 but never completed. It is anticipated that it will amend the rules of the Court of Session, Ordinary Cause Rules, Sheriff Appeal Court Rules, Simple Procedure Rules and Summary Cause Rules by:
(1) permitting the court to find a legal representative liable for expenses incurred by a party where the representative is guilty of a serious breach of their duties to the court and the expenses are attributable to that breach;
(2) restricting the amount to the level of expenses incurred by a party who has suffered the loss attributable to that breach of duty;
(3) permitting the court to make an order for expenses: (a) on its own account; or (b) on the motion of a party for whom the representative does not act, and never has acted;
(4) providing for a hearing to be fixed to allow the representative, and any party, to be heard on the matter, with written submissions being lodged in advance.