Factual and Procedural Background
The Respondent brought a simple procedure claim in the sheriff court seeking payment of £3,120.02 said to be owed under a credit-card agreement. The Respondent averred that the debt had been assigned to it in 2016. The Appellant did not principally deny the debt but required the Respondent to prove its case. The Respondent lodged the credit agreement, account statements, a default notice, a redacted assignation agreement, and an assignation notice. [1]
At the hearing, the Appellant was unable to attend. A joint minute admitted, among other matters, the credit agreement, the accumulated debt, intimation of the assignation, and payments to the Respondent’s agents. The other documents were not expressly admitted in the joint minute. [2]
The sheriff rejected the Appellant’s arguments concerning enforceability, service of the default notice, and title to sue, and granted decree for the outstanding debt. The Sheriff Appeal Court upheld the decision, reasoning that section 77 of the Courts Reform (Scotland) Act 2014 permitted the sheriff to consider documents without them being spoken to by a witness. [3][4][5]
The Appellant obtained permission to appeal to the Inner House on the interpretation of section 77. [6][7]
Legal Issues Presented
- Whether section 77 of the Courts Reform (Scotland) Act 2014 permits a sheriff to treat a document as evidence where it has neither been spoken to by a witness nor admitted in a joint minute. [8]
- Whether the Simple Procedure Rules more generally permit the sheriff to have regard to lodged material that has not been formally spoken to in evidence. [9]
Arguments of the Parties
Appellant’s Arguments
- Section 77 removed ordinary restrictions based on admissibility but did not eliminate the requirement to prove a party’s case or establish the provenance of documents. [10][11]
- The words “evidence being led” showed that evidence still had to be led before a document could become evidence. Rule 10.3 also suggested that documents brought to a hearing were not automatically evidence, since the sheriff could refuse to consider them. [12]
- The Respondent had led no witnesses and there had been no agreement that the relevant documents were what they bore to be. The Respondent therefore failed to prove its case. [13][14]
Respondent’s Arguments
- Simple procedure was intended to be informal, and documents lodged or brought to a hearing could be considered by the sheriff without formal proof. [15]
- Section 77 disapplied the requirement for formal proof, consistently with the legislative aim of removing technical legal rules and facilitating swift resolution. [15][16]
- The sheriff was entitled to identify which factual matters were genuinely disputed and to consider the documents because the provenance of the documents was not genuinely disputed. [15]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| McTear v Imperial Tobacco Ltd 2005 2 SC 1 |
At common law, a document generally cannot become evidence unless spoken to by a witness, subject to recognised exceptions. |
The court accepted this as the ordinary common-law rule but held that the Simple Procedure Rules permit a broader approach where facts are not genuinely disputed. [17][18] |
| Faculty of Advocates and Judicial Appointments Board for Scotland [2025] CSIH 5; 2025 SLT 171 |
Statutory provisions must be construed by considering their wording, context, and statutory purpose. |
The court applied those principles when interpreting section 77. [19] |
| R (O) v Home Secretary [2022] UKSC 3; [2023] AC 255 |
Where statutory wording, read in context, is clear and unambiguous and does not produce absurdity, external materials do not alter its meaning. |
The court used this approach in assessing section 77 and the surrounding legislative materials. [20] |
| In Re JR 222 [2024] UKSC 35; [2024] 1 WLR 4877 |
“Absurdity” includes unworkability, impracticality, inconvenience, anomaly, or illogicality. |
The court rejected the argument that its interpretation of the Simple Procedure Rules produced uncertainty or absurdity. [20][21] |
| R v Home Secretary, ex parte Pierson [1998] AC 539 |
Parliament is presumed not to intend to change the common law unless that intention is clearly expressed or necessarily implied. |
The court held that section 77 did not clearly or necessarily displace the common-law rule requiring a witness to speak to a document where its provenance is genuinely disputed. [20][18] |
Court's Reasoning and Analysis
The court began with the common-law rule that, in adversarial procedure, a document generally cannot become evidence unless its terms are agreed or it is spoken to by a witness. [17][22]
Section 77(1) removes rules preventing evidence from being led on admissibility grounds. The court distinguished admissibility from the separate question of whether evidence has actually been led. The provision therefore does not permit a document to be treated as evidence where it has not been spoken to by a witness and its provenance is genuinely disputed. [23][18]
However, the court held that this did not resolve the appeal. Simple procedure is not conducted in the same manner as ordinary adversarial procedure. The statutory scheme gives the sheriff broad powers to identify the issues in dispute and adopt a procedure appropriate to the case. [24][25]
Under Rule 12.4, the sheriff must identify the factual and legal matters genuinely in dispute. Formal evidence is required only for genuinely disputed facts. Material lodged with the court may otherwise be considered in the colloquial sense of “evidence” used by the Simple Procedure Rules. [26][27][21]
The court considered that this interpretation was neither uncertain nor absurd. Parties can reasonably be expected to identify which facts are disputed, while the sheriff determines what evidence is required. [21]
In this case, the Appellant had admitted entering into the agreement, accumulating the debt, receiving intimation of the assignation, and making payments to the Respondent’s agents. Those factual matters therefore required no further evidence. The arguments also proceeded on the implicit basis that the documents were genuine and accurately represented what they purported to be. In addition, the agreed letter of assignation was sufficient to support the sheriff’s finding that the Respondent had title to sue. [28]
Holding and Implications
Appeal refused. Section 77 does not, by itself, permit an unproven document whose provenance is genuinely disputed to be treated as evidence. Nevertheless, the Simple Procedure Rules permit the sheriff to consider lodged material where the underlying facts are not genuinely disputed. [18][24][21][29]
The direct effect was that the Respondent’s decree remained in force. The decision clarifies the distinction between formal evidence and material that may be considered in simple procedure; no broader consequence beyond that clarification is stated in the opinion. [27][29]