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Defended Ordinary Actions in the Sheriff Court: Implementing Ordinary Cause Rules (1993) - Research Findings

DescriptionFollow on study from earlier research findings, with focus on implementation of new rules.
ISBN
Official Print Publication Date
Website Publication DateDecember 29, 1998
Legal Studies Research Findings Summary No 8 (1995)
Defended Ordinary Actions in the Sheriff Court: Implementing Ordinary Cause Rules (1993) 1

Elaine Samuel and Robert Bell

ISBN 0-748-65999-4Publisher The Scottish OfficePrice £5.00
This research examined the progress and outcome of a sample of civil proceedings in the Sheriff Court following the introduction of new rules for ordinary cause actions in January 1994. The study involved analysis of 1185 court actions initiated between August 1994 and May 1995 in 5 sheriff courts; interviews with sheriffs, solicitors and court staff; and observation of court hearings. This study follows on from an earlier study which looked at procedure before the introduction of the new rules. The research was conducted by Elaine Samuel and colleagues at the Centre for Social Welfare Research, University of Edinburgh.
Main findings
  • The introduction of O.C.R.(93) has been effective in reducing delay and the number of callings in ordinary cause actions in the Sheriff Court.
  • Overall, the rules have had a greater impact on non family than on family actions.
  • The impact of the rules has largely been on the adjustment period. The Options Hearings, in particular family Options Hearings, have not been as effective as anticipated and timetabling rules do not apply after that point.
  • There is tension between O.C.R.(93)'s objectives of vesting control in the court and keeping the number of callings as low as possible.
  • Sheriffs balanced these contesting objectives differently, ranging from those who used a consistent approach across a wide range of case types to those who adopted a more flexible approach to resolving disputes.
  • Further improvements could be obtained by providing sheriffs with guidance on how to balance competing objectives, in assisting them to adopt the flexible and proactive stance that effective case management requires, and on developing O.C.R.(93) to take account of case progress after the Options Hearing.
Background to the study
In 1990, the Sheriff Court Rules Council published a consultation paper outlining proposals for the reform of ordinary cause procedure in the Sheriff Court 2. It concluded there was scope to remove some of the time-consuming formalities and practices associated with the procedure, in particular to reduce the average length of proceedings (then 63 weeks) and the number of cancelled court hearings.
New procedural rules for ordinary cause actions in the Sheriff Court came into force in January 1994 3. They represent the first major change to ordinary cause procedure since 1913 and were intended to implement 5 policy objectives for the procedure:
  • cases should call in court only when necessary;
  • the number of callings should be kept to a minimum;
  • rules should prescribe periods for completion of the various stages of the procedure;
  • control and management of cases should be vested in the court rather than leaving the parties free to litigate at their own pace;
  • procedures of the Court of Session and the Sheriff Court should be harmonised wherever possible.
The new rules were targeted primarily at reducing delay and reducing the number of callings in court during the adjustment period 4. The new rules lay down a fixed timetable within which adjustments are to be completed and require any adjustments made to be done outwith the ambit of the court. The first calling in court is at a newly designated procedural hearing called the Options Hearing, and is fixed by the Sheriff Clerk on receipt of a Notice of Intention to Defend at a time approximately 13 weeks later. The Options Hearing itself also has a role to play in improving procedure: the rules provide sheriffs with a new interventionist and proactive role in deciding, for example, whether the Options Hearing may be continued for 4 weeks, whether the complexity of the case merits a Procedural Hearing under Additional Procedure and whether a debate should be allowed. The rules also provide them with sanctions for failure by parties to meet the timetable and other procedural requirements. The procedure for written motions has also substantially changed to reduce the number of times motions calling in court.
This report is based on research into the system of civil dispute resolution in the Sheriff Court following the introduction of these new procedural rules for ordinary cause actions. The research was commissioned by the Scottish Courts Administration as part of a wider study of the implementation of these rules. This 2nd phase of the study was designed to monitor and evaluate the implementation of the new rules and to provide a basis for evaluative comparison with the 1st phase which had monitored civil proceedings in the Sheriff Court prior to their implementation 5.
The impact of O.C.R.(93)
Reducing delay
Following the introduction of O.C.R.(93) there was a considerable reduction in the average length of defended cases, from 48 weeks 6 to 41 weeks. This 7 week difference is likely to decrease slightly as a few of the unconcluded cases in the sample reach a conclusion.
The large proportion of actions concluded around weeks 13-17 across all the sheriff courts studied testifies to the significance of the Options Hearing in ordinary cause actions under the new rules (particularly in non-family actions). While the Options Hearing might have reduced delay in many cases, however, it may also have extended the length of proceedings in others which previously would not have waited as long as 13 weeks to call in court. There was some indication that new court dues for written motion procedure introduced at the same time as O.C.R.(93) were partly responsible for this delay.
There were clear differences across different types of cases. Family cases took an average of 44 weeks to conclude while all other actions took an average of 39 weeks. Personal injury and damages cases and actions for divorce involving craves for property rights took longer on average than all other cases, and did not appear to be successful in accommodating to the fixed timetable laid down by the new rules. There were also differences across the sheriff courts, especially in family cases and cases continuing beyond the Options Hearing for proof.
Reducing the number of callings
The new rules were highly effective in reducing the number of callings in court during the adjustment period. Amongst actions with defences lodged, Options Hearings were called more than twice in only 4 per cent of the sample. This compares favourably with the pre-implementation study where 57 per cent of similar actions called on the adjustment roll more than twice. The new rules were also highly effective in reducing the number of written motions which called in court. Though written motions were lodged in more than three-quarters of all cases, they were called in less than half (40%), though marked variations between courts were found.
To minimise court callings, cases were often sisted (or frozen) rather than continued for a further calling and this not only increased delay but removed cases from the control of the court. It was found that though continuations made demands on court time, they also could be used to expedite the process of litigation and retain control in the court. This resulted in conflict between the policy objectives and is discussed below.
Calling only when necessary
Following the introduction of the new rules, diets of debate were fixed in only 10% of all actions, dropping from 17% before their introduction. However, the proportion of cases where a diet was fixed and actually heard (14%) has not changed and the proportion of diets not discharged until called in court has actually increased since the introduction of O.C.R.(93).
Proof and proof before answer diets were fixed in almost a quarter (23%) of all actions and proofs were most likely to be heard in family actions. However, fewer than 5 per cent of concluded cases were disposed of by an adjudicated proof so that a large proportion of proof diets which had been fixed were not heard. Most were not discharged until they called in court.
Options Hearings were more likely to be discharged prior to calling and were often discharged in family actions soon after a Notice of Intention to Defend was lodged. This was usually to sist the case and stop the procedural clock. Unnecessary callings in court were thereby avoided, but only in pursuit of ends which may be antithetical to the objectives of the new rules. The mixed success of the rules in reducing the number of the unnecessary callings in partly attributable to factors outwith O.C.R.(93), and is discussed below.
A fixed timetable
The rules were designed to shorten the trajectories of actions by prescribing periods for reaching certain 'milestones' or procedural stages through which the action must pass. The new rules lay down a fixed timetable within which adjustments to the record must be completed, and require that all adjustments be made by the parties outwith the court and within a specified time. The date for the Options Hearing is set by the sheriff clerk on receipt of a Notice of Intention to Defend and signals the end of the adjustment period. It also provides the forum within which the new interventionist or proactive shrieval approach is enacted, including the power to apply sanctions if procedural requirements are not met. Time limits for the submission of documents and other key tasks are clearly set out in O.C.R.(93) and are there to assist the sheriff in taking control of the case up to the point of the Options Hearing. The establishment of time periods for different stages is an important part of helping to vest control of the case with the court rather than the parties.
Following the introduction of O.C.R.(93), defences were lodged in a higher proportion of cases than was previously the case. The average length of proceedings between registration of the action and lodging defences was 60 days - considerably more than the 35 days allowed for under O.C.R.(93).
The majority of cases (87%) which called at the first Options Hearing fixed did so within the time period specified, and the remaining 13% did so soon afterwards. However, just under half (48%) of all actions did not call at the first Options Hearing fixed, mainly because they had been sisted. Those cases which went on to call at a second Options Hearing fixed did so on average 30 weeks following registration - considerably more than the 12-14 weeks allowed under O.C.R.(93).
Adjustment was completed within the specified period in 78 per cent of the cases where the record had been closed, though this overestimates the success of the new rules since adjustment was not yet completed in some of unconcluded cases in the sample. Where the record was not closed at the first Options Hearing fixed or at its continuation, or at a Procedural Hearing under Additional Procedure, but at some point thereafter, adjustment was completed outside the procedural timetable. Adjustment took far longer than average to complete amongst those family actions which included craves for parental rights. This raises the possibility that the prescribed time limits may be too restrictive in actions which involve dynamic and complex circumstances rather than one-off events.
Vesting control in the court
The new rules provide sheriffs with new powers to ensure that cases only call in court when necessary, that the number of callings is kept to a minimum and that cases proceed according to a fixed timetable. While this appears to have been achieved in some courts, in other courts the tension between vesting control in the court and keeping callings to a minimum meant that control passed from the court into the hands of parties who were then free to litigate at their own pace.
Control was taken by parties in a number of ways, some by their instigation and some by the court. For example, sists which "freeze" the case and take it outwith the ambit of the court were used at least once in almost 3/4 (71%) of family actions and almost half (49%) of all others. Amendment procedure which allows the record to be changed substantially without shrieval scrutiny and provisions for parties to fix proof diets in some courts did not contribute to the policy objective of vesting control and management of cases in the court.
Differences in support for this policy objective were found amongst sheriffs, and this resulted in different practices, for example, at family Options Hearings. In the larger courts, in particular, the organisation of court work, the multiplicity of sheriffs, and the absence of information technology or any provisions in the new rules for sheriffs to call up parties at their own instigation reduced opportunities for achieving this policy objective.
Variations in implemention
There were clear variations in the ways cases progressed between the courts and, in the larger sheriff courts, between sheriffs. Differences between courts appeared in sharper focus when family and other actions were examined separately (especially when family actions with craves for parental rights were separated out). This made a significant impact on the length of family proceedings in different sheriff courts.
These were also variations between courts and, in the larger courts, between sheriffs in the extent to which the Bench took a pro-active stance at Options Hearings. Differences were marked in the management of family Options Hearings and particularly in the way parties were dealt with. These differences were attributed to the organisation of court work, the provision of information available and the previous experience and training of individual sheriffs.
Courts also varied in their arrangements for procedure, such as continuations, the fixing of proof hearings and the calling of motions. New rolls were found to have been created in some sheriff courts which were not provided for by O.C.R.(93). Their use often depended on which of the different policy objectives underlying O.C.R.(93) was being prioritised, as well as on public resource considerations. Because different courts prioritised different policy objectives, this led to different practices in the conduct of ordinary cause procedure in the sheriff courts.
The wider context
A new court fee structure for all sheriff court actions was introduced at the same time as O.C.R.(93) and may be responsible for some of the changes charted by the research. In 1994, for example, the number of ordinary cause actions initiated in the Sheriff Court dropped by over 20 per cent, and it is unlikely that this can be wholly explained by the introduction of new procedural rules.
The research suggests that these new court dues and, in particular, those pertaining to written motion procedure, might have influenced the number of times cases called in court. Diets of debate and proof, for example, were not being discharged until they called in court and it was suggested that from the litigant's perspective, the cheapest way to dismiss actions was simply not to appear. If so, the new court fee structure may be responsible for increasing the number of unnecessary callings. It may also be responsible for increasing delay since cases which could conclude earlier wait until they are called in court.
There were also suggestions that the new court fee structure which requires each procedure to bear its own cost was not conducive to the policy objective of vesting control and management of cases in the court. This was because it was responsible for changing the conception of court users from public service users largely funded out of the tax system to consumers entitled to make decisions over the services they were now paying for.
Conclusion
The new rules for ordinary cause actions in the Sheriff Court have, on balance, been effective in reducing delays and the number of court appearances in most cases. Nevertheless, they have been adopted in courts across Scotland with varying degrees of effectiveness and the research suggests that further steps are required to increase the impact of O.C.R.(93).
Some of the objectives underlying O.C.R.(93) do not appear to support each other. In particular, calling cases in court only when necessary is not conducive to vesting control and management of cases in the court. This is because it reduces the opportunities for the court to exercise control. Likewise, it does not promote a third objective, the reduction of delay. Because practitioners often use court hearings to expedite the progress of their cases and because opportunities for court hearings are now reduced, delay may be increased.
The effectiveness of Options Hearings needs to be examined further, particularly in regard to the role of the sheriff, the management of family Options Hearings and the control of cases which continue beyond the Options Hearing. Procedures need to be considered which ensure that cases are effectively 'tracked' and that guidelines are produced for handling cases post Options Hearing. Some administrative procedures and court programming systems which are antipathetic to case tracking and case management and which could undermine the effectiveness of O.C.R.(93) may require further consideration.
About the study
This study is the 2nd phase of a programme of research which was undertaken to monitor and evaluate the implementation of new procedural rules for ordinary cause actions in the Sheriff Court. The 1st phase of the research programme was conducted by the Legal Studies Research Branch of The Scottish Office and collected data on actions dealt with by the courts prior to implementation of the new rules. This 2nd phase study was commissioned by The Scottish Office Legal Studies Research Group on behalf of Scottish Courts Administration and was undertaken at the Centre for Social Welfare Research, University of Edinburgh, by the principal researcher, Elaine Samuel, with the assistance of Robert Bell, Colin Lancaster, David Parratt and Irene Purcell.
The study was conducted between May 1995 and January 1997 and data were collected on 1185 defended ordinary cause actions raised in a sample of 5 sheriff courts following the introduction of the new rules. The Options Hearing was examined by observing 20 full sessions of Options Hearings at these same 5 sheriff courts. A total of 35 interviews were conducted with sheriffs, solicitors and court staff.
1 Act of Sederunt (Sheriff Court Ordinary Rules) 1993 S.I. No. 1956(S223), hereinafter referred to as O.C.R.(93).
2 Review of Sheriff Court Procedures and Practices, Sheriff Court Rules Council, Consultation Paper (1990).
3 Act of Sederunt, op.cit.
4 For a more detailed outline of the new procedures, see the full report of this research.
5 Pilgrim's Process? Defended Actions in the Sheriff's Ordinary Court, Morris, S and Headrick, D Central Research Unit Report and Research Findings, HMSO, Edinburgh;
6 ibid.
Defended Ordinary Actions in the Sheriff Court: Implementing Ordinary Cause Rules (1993), the research report summarised in this Research Findings, may be purchased (price £5 per copy).
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