§ 3.5 p.m.
§ The Lord Advocate (Lord Cameron of Lochbroom) rose to move, That the draft order laid before the House on 12th July be approved [33rd Report front the Joint Committee].
§ The noble and learned Lord said: My Lords, your Lordships may recall the debates in this House on what became Section 18 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. This provision laid the foundation for, and established the main features of, the small claims procedure in Scotland. During the passage of the Bill I undertook to come back to this House with my detailed proposals about those summary cause actions which I proposed should be small claims. This I now do with the order which is before your Lordships.
§ I also undertook to consult publicly on my proposals. I did this in March last year in a consultation paper which was then issued on my behalf and on behalf of the sheriff court rules council which has the responsibility for preparing the detailed rules for consideration by the Court of Session. Written replies were received from 39 persons and organisations. To all these people I offer my thanks for their careful and helpful comments.
§ Those of your Lordships who have read the consultation paper and compared my proposals there with the contents of the order before this House will have noted two main changes. On reconsideration and taking account of what had been said by consultees I have included two types of action that I had previously considered unsuited for a small claims procedure. These are actions ad factum praestandum and actions for recovery of moveable property. I shall explain my reasons for including those actions in the order in a moment, but first I should like to explain my approach to the provisions of the order.
§ The purpose of small claims procedure is to create a court procedure which is, as far as possible, "user-friendly" to lay litigants. The procedure should be as simple as possible and it should be relatively inexpensive to raise a claim or to defend a claim. The achievement of these aims means that over-subtle distinctions, particularly in the definition of a small claim, should be avoided in favour of a broader approach. It also means placing reliance on the good sense and co-operation of all those who have to operate the procedure.
§ Lastly, it means accepting that difficult and complex cases should, where appropriate, be remitted from small claims procedure to summary cause or ordinary cause procedure. This is provided for in Section 37(2B) of the Sheriff Courts (Scotland) Act 1971, a provision of the 1985 Act. The limits on expenses which apply in small claims procedure will 483 not of course apply to cases which are remitted to summary cause or ordinary cause procedure.
§ The great majority of all small claims will be actions for the recovery of money. However, as your Lordships will appreciate, such actions can cover many diverse matters. In responses to consultation, I received arguments that road traffic accident claims and personal injury claims generally should be excluded because they involved special considerations making them unsuited for small claims procedure. I do not however consider that they should be excluded. I am reluctant to make distinctions which may be arbitrary and prove difficult to apply in practice. The lay litigant should not be faced with the difficult approach of whether his claim is indeed a small claim. Unless there are strong reasons to the contrary, actions which appear suitable for small claims procedure should not be excluded. It is of course always open to me to amend the definition of a small claim in the light of experience of the operation of the procedure.
§ The draft order provides for an upper value limit of £750, exclusive of interest and expenses. I have received arguments that this is too much, too low and about right. On balance, I have thought it best to maintain the level proposed in the consultation paper. In doing so I have been conscious that it is a new scheme as yet untried. This suggests that it is preferable to start the procedure with a lower rather than a higher figure for the upper limit.
§ I have also had regard to the argument that the procedure should cover as many as possible of regularly purchased consumer goods such as washing machines, television sets and video recorders. That points to not setting the upper limit for the procedure too low.
§ I turn now to the other types of action that I propose should be included as small claims. These are actions ad factum praestandum and actions for the recovery of possession of moveable property but only where in either case there is an alternative claim for payment of a sum of money not exceeding £750. In the consultation paper I originally proposed to exclude all claims that were not money claims. My reason was that I regarded these summary cause actions as rather too complicated to be included in the small claims procedure in its initial form. However, I received many responses which argued in favour of the inclusion of actions for the recovery of property and the performance or implementation of obligations and services. I accept that there is force in these views and have accordingly included actions ad factum praestandum and actions for the recovery of moveable property subject to a requirement that there should be an alternative monetary claim for under £750 in order to distinguish those of such claims which are to be treated as small claims from those which may not.
§ To those of your Lordships who may wonder at the inclusion of the Latin phrase ad factum praestandum in a procedure which is intended to be as simple and untechnical as possible I offer my apologies. My ear has been bent to translate that Latin term into English but I am told that to do so would be ultra 484 vires Section 18 of the 1985 Act. Perhaps some light is thrown on that by Article 3 of the order, which explains that actions ad factum praestandum include actions for delivery and actions for implement but do not include actions for count, reckoning and payment. I hope that this will be sufficiently illuminating to the non-Latinate. I am glad to report that I understand that the draft procedural rules and forms, prepared by the Sheriff Court Rules Council, have been able to avoid using the Latin term.
§ This now brings me to the provisions in Article 4 about the limits on the award of expenses in small claims. My powers under Section 36B of the Sheriff Courts (Scotland) Act 1971, which was introduced by Section 18 of the 1985 Act, are limited to fixing the sum under which no award of expenses is to be made in a small claim and the sum for the overall maximum small claims limit. I have specified £200 and £75, respectively, in the order. I have taken the view that I have no power to fix more than one sum in each case and that I should not provide either for a proportional banding of expenses limits in accordance with value levels of claims or for the amount of expenses awardable to be a percentage of the sum for which decree was sought. Both courses of action were advocated by a number of those who responded to the consultation paper. I think however that what is provided in the order is an appropriately simple provision, certainly for the small claims procedure as initially introduced.
§ Finally, I should like to express my thanks to everyone who has been involved in the preparations for the small claims scheme and its introduction in sheriff courts throughout Scotland. In particular I should like to express my appreciation of the work of the Sheriff Court Rules Council under the chairmanship of Sheriff Principal Taylor. It has been engaged for some years in considering small claims procedure and in preparing successive drafts of the rules. The burden of preparation has been onerous but I know that the new procedure will be widely welcomed. My Lords, I beg to move.
§ Moved, That the draft order laid before the House on 12th July be approved [33rd Report from the Joint Committee].—(Lord Cameron of Lochhroom.)
§ 3.15 p.m.
§ Lord Carmichael of Kelvingrove
My Lords, we are grateful to the noble and learned Lord for his full explanation, which I am sure will find a place in many legal offices in Scotland. I had not before heard the phrase in connection with small claims courts, but I thought that "user-friendly" was a particularly felicitous description. I am not sure how close it comes to reality but the idea is to make it as user-friendly as possible.
It is gratifying to note that, following our discussions in 1985 and requests for opinions, 39 written replies were received both from individuals and from representative bodies. I believe that there was also a great deal of discussion with those concerned, and the profession is continually discussing the issues. Therefore the noble and learned Lord will know of the thoughts of those involved with the small claims court and of the decisions taken therein.
485 We are grateful to the noble and learned Lord for attempting to let us into the secret of what is meant by the Latin phrase. Although I took Latin I shall not try to pronounce the phrase because there appear to be varied pronunciations depending upon the part of the country in which one was taught. However, I am sure that the issue will be looked at with great care.
The noble and learned Lord suggested that there were problems with certain bodies in respect of the limit of the award of expenses in small claims. I am sure that he has done his best but I hope that he has it right on this occasion. It could affect people at a personal level, so I am sure that he will have gone to a great deal of trouble.
I have only discussed this matter with one or two people who have an interest in it and the general impression I have is that with all the various difficulties and problems that come before the small debt court. this is as good an answer as we are likely to receive for some time. Only time will tell whether any other improvements are required. Therefore, I am grateful to the noble and learned Lord the Lord Advocate for all he has done to meet earlier points raised and also for the full explanation he has given today.
§ On Question, Motion agreed to.