small claims
case digest

Kuklinski -v- Hassell 1992 SCLR 499


Issue - Notice of a line of defence and statement of claim; application of Small Claims Rules 12(4) and 13(5).

P involved in road accident and sought damages from D on the basis of alleged negligence. At the preliminary hearing D stated a defence that accident was caused by P's negligence and he was not liable. At the proof D was legally represented and attempted to pursue defence on basis of contributory negligence. The Sheriff held this new defence was incompetent in terms of rule 13(5). D appealed.

The Sheriff Principal upheld the Sheriff's judgment on the basis that rules 12(4) and 13(5) were mandatory (summarised below).

The Sheriff Principal stated that there was 'no basis for treating a small claims in a different manner from an ordinary cause or summary cause as regards giving notice of a line of defence, especially where a party was legally represented'.

rule 12(4) - 'Where the defender has delivered a form of response to the sheriff clerk ... he shall attend or be represented at the preliminary hearing and state his defence to the court (which shall be noted by the sheriff on the summons)'.

rule 13(5) - 'At the preliminary hearing, the sheriff shall ascertain from the parties or their representatives what the disputed issues in the small claims are and shall make a note of  them on the summons; and it shall thereafter be unnecessary for a party to satisfy the sheriff on any issue which is not noted as a disputed issue'.