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Court reform countdown

The final days…

In January of this year, Lord Gill called the Courts Reform (Scotland Act) 2014 “the single most important piece of legislation in the field of civil justice for over a century”.

While the importance of numerous pieces of secondary legislation should not be underestimated it is clear the changes are going to be monumental.  Main areas for reform:-

  • The Sheriff Courts’ privative limit of £5,000 will be replaced with an exclusive competence of £100,000;

  • Sheriff Courts with an all-Scotland jurisdiction to be established;

  • New appeal procedures and the creation of a Sheriff Appeal Court;

  • The introduction of a three month time limit and a requirement for permission in all judicial reviews;

Replacing summary cause procedure – which also includes small claims – with a new simple procedure.

The all-Scotland court

It is a matter of days now until Scotland’s first civil court specialising in personal injury cases opens in Edinburgh on 22nd September 2015.  This will be the first use of the all-Scotland jurisdiction rule which will be solely for personal injury actions at this stage.  The court will have all-Scotland Jurisdiction and sit within Edinburgh Sheriff Court.   Six sheriffs (Sheriff’s Paul Arthurson QC, Peter Braid, Gordon Liddle, Katherine Mackie, Kenneth McGowan and Fiona Raith QC) have recently been named as the specialist sheriffs to sit in the new court.   The change of the privative jurisdiction of the Sheriff Court from £5000 to £100,000 will see the lower court handle the vast majority of the cases previously heard in the Court of Session.    It is thought actions relating to catastrophic injury or mesotheliomas are likely to remain in the Court of Session.

While court actions can still be raised in local Sheriff Courts only actions raised in the all-Scotland personal injury court will be eligible for a jury trial.  The revival of jury trials in the sheriff court will raise a number of issues such as the inherently higher and unpredictable nature of jury awards, especially in fatal cases and the tactical advantage it may it give to the pursuer, where sometimes the threat of a jury trial is enough to encourage unwarranted increased offers simply to avoid this route.

The new appeals process

There will be the creation of a Sheriff Appeal Court to hear many of the appeals that currently go directly to the Court of Session.  This will replace appeals to the sheriff principal and will take over all summary appeals from the High Court.  It is thought the court will sit mainly in Edinburgh although it can sit anywhere in Scotland.  Sheriff Principal Mhairi Stephen QC has been appointed as the Court’s first President with Sheriff Principal Scott as Vice-President.   An unusual feature of the Act is that it expressly defines the precedent status of Sheriff Appeal Court decisions.  They are to bind any sheriff or justice of the peace, and also an Appeal Court itself unless a larger court is convened. 

The new appeal process will make it more difficult to appeal to the Court of Session which may be taken with only permission of either court and only if the appeal would raise an important point of principle or practice, or for “some other compelling reason.” The test will be even stricter to the Supreme Court which essentially will mean in practise very few Scottish cases will make it to the Supreme Courts.

Expenses implications - sanction for counsel

One of the main aims the changes to the courts’ structure and the ongoing review of governmental consultation of expenses and funding of civil litigation in Scotland is that the cost of litigation will be driven down and expenses will become more predictable.  One of the major expenses in any high value or complex case is that of Counsel.  Given the move of so many cases from the Court of Session to the Sheriff Court it will be interesting to see how this will affect the use of Counsel and the associated expenses. If sanction is granted in the Sheriff Court this could escalate expenses dramatically.  There will be no automatic sanction for counsel in Sheriff Court actions, but there have been indications from the courts that applications for sanction will be considered favourably by sheriffs, especially in employer’s liability cases. It may be an idea for defenders at the outset to oppose any motion for sanction to try to determine the parameters the courts will set by which counsel can be justified.

Judicial review

Another important change will be in the area of Judicial Review with new sections 27A and 27D to be inserted into the Court of Session Act 1988.  Applications for judicial review have to be made within three months of the date on which the grounds giving rise to the application first arose.  In addition to this strict time limit there are further hurdles to overcome.   Permission must be sought from the court and the matter must be of “sufficient interest”, have real prospects of success and in some cases even when these are satisfied there may also need to be “importance to the public at this time”.  Permission can be given by the court on papers or at an oral hearing, and decisions at an oral hearing can be appealed to the Inner House but a decision on papers is final. The changes will undoubtedly make it harder for applications to proceed and it is expected that numbers will fall significantly.

What’s next?

The 22nd September will see the start of some of the most major changes but it will not be the end of the upheaval for Scotland civil practitioners.  In January 2016 the Sheriff Appeal Court will start hearing civil appeals; both small claims and summary causes will be replaced by the new simple procedure; the Rules Rewrite committee will continue with their comprehensive rewrite of all of Scotland civil procedure rules and compulsory pre-action protocols are likely to be introduced towards the end of 2016.  

The clear hope for the changes that will come about is that along with greater access to justice there will be also be a greater degree of expertise and efficiency across the courts with the appropriate members of the judiciary dealing with cases in the most suitable courts.   This should enable judicial expertise to develop case law which will have a binding effect nationally rather than on a piecemeal basis.  With so much change afoot time will tell but it is an exciting time to be in the courts in Scotland.

Contact

For further information please contact Caroline Coyle, Associate, Professional Support Lawyer on 07712 355 907 or caroline.coyle@dwf.co.uk.

By Caroline Coyle

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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