The Courts Reform (Scotland Act 2014) ("the Act") has been called “the single most important piece of legislation in the field of civil justice for over a century”.
For professional negligence claims the extension of the jurisdiction of the Sheriff Court from £5,000 to £100,000 is a significant development as it means that all cases up to the value of £100,000, subject to certain exceptions, will now be raised in the Sheriff Court rather than Court of Session (the highest civil court of first instance in Scotland). The reforms seek to redistribute court business and ease pressure on the Court of Session.
Effect on professional liability claims
As a result of these reforms, more professional liability claims will now be brought in the Sheriff courts and this raises two principal concerns as follows:
The Court of Session has a specialist Commercial court and dedicated judges with significant experience in professional liability claims. Although certain Sheriff courts have dedicated Commercial Sheriffs, it remains to be seen how they will deal with high value complex claims, particularly given the additional pressures placed upon the Sheriff Court system by the significant increase in the volume of cases now coming to it.
In recognition of the fact that monetary value is not always an indicator of complexity, the legislation does contain provisions allowing for cases to be remitted to the Court of Session if they are particularly novel or complex. It should therefore be of some comfort to professionals facing a claim that there remains the possibility of having a claim dealt with by the Court of Session, if the court is persuaded the case is sufficiently complex to warrant the remit. Time will tell whether the courts will be sympathetic to applications under these provisions.
Litigating in the Sheriff Court should be a cheaper option for litigants because parties do not have to be represented by counsel and the court fees are lower. However, the prospects of a successful party recovering their costs are also lower in this forum. Where you have a complex case which requires the instruction of counsel, there is no automatic right to recover those costs from the unsuccessful party.
We are concerned that these changes may presage an increase in the number of speculative small claims against professionals by disgruntled litigants.