PI Brief Update

An Update from North of the Border: Scottish Court Reforms To Take Effect From 22nd September - David Stihler, Brodies LLP

11/09/15. The Courts Reform (Scotland) Act 2014, referred to by Lord Gill as “the single most important piece of legislation in the field of civil justice for over a century”, is designed to maximise the efficiency and the output of the Scottish courts. Many of its key provisions will take effect from 22 September 2015.

Although there are some changes to procedure in the Court of Session (Scottish High Court), the primary aim of the legislation is to move all court actions with a realistic value of up to £100,000 from the Court of Session to the Sheriff Courts (County Court equivalent). Should defenders challenge the raising of an action in the Court of Session based on its value it will be for pursuers to demonstrate that the claim would be likely to attract an award of £100,000 or more, This may prove a useful device for defenders to seek the early disclosure of evidence, which is not currently required in the Scottish jurisdiction.

All claims below the £100,000 threshold must be raised in a Sheriff Court in the first instance, although it will be open for pursuers to argue that a case is sufficiently complicated to make it suitable for transfer to the Court of Session.

There are numerous provisions for the transfer of cases between the Sheriff Court “tracks” and between the Sheriff Court and Court of Session, although it is anticipated that where a case is properly raised at the Sheriff Court level it is unlikely to be transferred to the Court of Session. Conversely, where an action has been raised in the Court of Session and its value does not realistically appear to be in excess of £100,000 there is a presumption that it will be sent to the Sheriff Court. Accordingly, should a defender challenge the value of a claim raised in the Court of Session, or, arguably, its complexity, it will be for the pursuer to demonstrate that the claim has been reasonably raised in that forum.

As a result of the reforms, there can be little doubt that the Sheriff Courts will face an influx of personal injury claims; given that they represent a significant volume of civil cases with a value below the £100,000 threshold. To deal with the anticipated rise in the number of cases a specialist personal injury court with Scotland-wide jurisdiction will operate from Edinburgh Sheriff Court. The All Scotland Personal Injury Court will have six Sheriffs with powers to deal exclusively with: personal injury claims with a value greater than £5,000; workplace-related claims with a value greater than £1,000; and any other case where “special cause” is established to have the claim run in the specialist court. The theory is that having Sheriffs dealing only with qualifying personal injury claims will allow for the expeditious and efficient processing of such claims, which have been said to clog up the court system.

As it will remain open to pursuers to raise personal injury actions in a local Sheriff Court, the All Scotland Personal Injury Court will not necessarily always be the ‘go-to’ court. That noted, an incentive for pursuers to raise actions in the in that forum will be the right to seek a civil jury trial just as they can in the Court of Session This is a first for the Sheriff Court, and remains restricted to the All Scotland Personal Injury Court. It may lead to a significant increase in the number of Scottish injury claims proceeding through jury trials, but pursuers will be wary of the recent Scottish case (Ferguson v Ferguson [2015] CSIH 63) which serves as a stark reminder that a jury trial does not always favour the pursuer. To avoid a civil jury trial when requested by a pursuer, just as in the Court of Session, the onus will be on the defender to persuade the court that the case is not be suitable for a jury due, for example, to complexity.

In light of these reforms, and in particular the substantial increase in the Sheriff Court’s privative jurisdiction, pursuers’ firms have raised concerns that injured parties may lose the expertise and independent input of counsel that they previously enjoyed in the Court of Session. The current approach is that counsel must be sanctioned to act in a Sheriff Court action if it is reasonable to do so and that sanction is currently granted on a staged basis. It is anticipated however that rules may be implemented to allow pursuers to seek the sanction of the court for counsel to act from the start to the finish of an action in the Scottish Personal Injury Court; which may prove costly for defenders.

The most significant change to Court of Session procedure is the introduction of a three-month time limit to raise judicial review proceedings, and the requirement for court approval to bring such proceedings; which will be a comfort to parties operating where there is a risk of a judicial review being sought.

Additional reforms, including the establishment of a Sheriff Appeal Court and the roll-out of a new ‘simple’ procedure to consolidate Small Claim and Summary Cause actions, which will be handled by a new tier of judiciary known as ‘summary sheriffs’ have yet to be implemented.

Broadly, it will be a matter of waiting to see how practice will evolve around the reforms before their full impact will be realised; but they are anticipated to be the greatest shake-up of litigation in Scotland for generations. Perhaps of even greater interest than the effect of the court reforms will be their impact on the costs of litigation – which will be explored in the next update from North of the Border.

David Stihler
Associate
Brodies LLP

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