Is the English & Welsh court procedure for delivering new court claims likely to follow the Scottish “Simple Procedure”?

January 2017

Is the English & Welsh court procedure for delivering new court claims likely to follow the Scottish “Simple Procedure”?

Stakeholders in the unsecured lending sector may find the parliamentary debate instigated by Chris Evans MP, which took place before Christmas of some interest.  The debate deals with perceived issues surrounding the methods of service of civil legal proceedings on individuals currently used in the England & Wales jurisdiction.

One of the points raised by the MP highlighted that the current civil court rules of England & Wales state that service of a claim form is deemed to be ‘good’ service when it takes place by first class post (or other equivalent postal service which provides for delivery on the next business day), at the last known address of the defendant, regardless of whether the proceedings are successfully delivered, or the address is actually the defendant’s current address. 

Contrast this position with the procedure in Scotland, where the ‘Simple Procedure’ has been introduced. Under Scotland’s Simple Procedure, upon receipt of a claim form, the Sheriff Court issues a timetable detailing deadlines for the claim form to be served upon the defendant and for the defendant to reply. Once in receipt of the timetable, the claimant is ordinarily expected to affect service by recorded delivery. Recorded delivery requires the signature of the recipient and as such provides a level of proof that the claim form has been delivered correctly. If the attempt to affect recorded delivery is unsuccessful, then the Sheriff Officer is instructed to affect personal service of the claim form at the address stated for the defendant. The Sheriff’s fee for personal service ranges between £50 and £100, depending upon the amount of the debt and the number of defendants to be served. The fee is generally un-recoverable from the defendants and so is paid by the claimant. In the event that neither of these methods of service is successful, then the claim form is advertised on the Scottish Court’s website as a last resort.  

The intent behind the Simple Procedure in Scotland is to try to minimise the chance that the defendant is unaware of the legal proceedings, or at least purports to be unaware. 

In comparison, the existing system in England & Wales does not require the proceedings to have actually been delivered or received, merely for them to have been placed in the relevant postal system and correctly addressed to the defendant’s last known address. Consequently, supporters of change in England & Wales point to the risk of defendants having Judgment entered against them, in cases where defendants have failed to respond to the claim, when there is a possibility that they may not have actually received notification of the claim.

However, opponents of change will be quick to point out the substantive increase in costs that such a change would cause. For claims by unsecured lenders and debt purchasers in particular, those costs would be likely to be passed onto customers as a whole in order to cover the increased overheads associated with personal service fees where they cannot be recovered elsewhere. Therefore, critics will consider moving to such a system to be disproportionate and contrary to the overriding objective in England & Wales of dealing with cases justly, fairly and at proportionate cost. 

If such a change result in creditors being discouraged from bringing claims because of the increased costs, opponents of change may argue that it will also see fewer claims being brought at court, a decline in court judgments and lenders ultimately becoming more risk averse when making loans because of a more prohibitive court process. 

It is clear that if any changes to the current system come a step closer, then such proposals are going to draw heightened awareness from stakeholders. However, in light of wider changes in the English and Welsh civil justice system, such as the move towards an ‘online court’ for all civil claims with a value below £25,000 by about 2020 and an anticipated re-draft by the Civil Procedure Rules Sub-Committee of the Pre-Action Protocol for Debt Claims at some point in 2017, it is perhaps less likely that these proposals will gain any further traction without concerted effort by parties in favour of such a change.