As mentioned in our previous e-update Civil Courts Review - Raising the Limit, the Review recognises the problems caused by the jurisdictional overlap between the Court of Session and the sheriff courts. The Review recommends that the limit of the sheriff court should be increased to £150,000 in an effort to solve these problems, by reallocating justice and transferring much of the casework of the Court of Session to the sheriff court.
Under this proposed new system, sheriffs would also be freed from some of their more routine cases in order to cope with this transfer of litigation. These more routine cases, involving minor criminal offences and claims of 'modest value', would instead be heard by newly created district judges.
The sheriff court currently has extensive jurisdiction over both civil and criminal business with a lot of time being taken up by low value claims and minor summary prosecutions. Much of this work is being carried out by judges who are viewed as overqualified for the job. The role of district judge is already operational in other jurisdictions and is usually filled by more junior judges. This means that more qualified and experienced judges have increased capacity to specialise and the ability to take on a more active case management role. We considered specialisation and case management in previous updates on the Review.
The Review proposes that district judges would have clearly defined civil and criminal jurisdictions.
- District judges will assume responsibility for all civil litigation involving claims for up to £5000. This means that sheriffs will focus on claims of higher value, therefore creating in effect, a new tier in the hierarchy of the civil courts.
- A district judge's remit will also cover housing actions as well as appeals and referrals from children's hearings, although complex or sensitive appeals or referrals should be transferred to a sheriff where appropriate.
- In relation to family actions, both district judges and sheriffs will be able to hear these. It is expected that most actions relating to contact and residence will be dealt with by the district judge and cases involving the division of matrimonial assets would mainly be heard by a sheriff. However, the district judge would have full jurisdiction to make any orders in relation to financial provision, even if the value of the assets was greater that £5000, should parties choose to bring proceedings before a district judge rather than a sheriff.
- The district judge would also have jurisdiction to hear urgent motions for interim orders in ordinary actions.
Although the Civil Review does not provide an in-depth analysis of the impact of criminal business on civil justice, the interaction between the jurisdictions has necessarily been considered. The sheriff courts are currently feeling the effects of conducting both civil and criminal business. Civil cases are often deferred or interrupted to make way for criminal business, causing delays and added expense.
In order for real progress to be made to the civil justice system the Review concludes that there must be a transfer of criminal work from sheriffs to district judges. Following on from this, the Review recommends that district judges should, over time, assume responsibility for summary criminal trials which are currently heard by sheriffs. There was some consideration given to the continuing need for Justices of the Peace in Scotland, by former Sheriff Principal John McInnes in his, 'Report of the Summary Justice Review Committee.' However, it was eventually decided that there was still a place for them, so they will continue to hear minor criminal and administrative cases in district courts.
District judges will, in addition, have jurisdiction to deal with the examination of an accused and to grant bail where the accused person appears on petition in a court in which there is no resident sheriff.
If these proposals come in to effect, there would inevitably be changes for sheriffs. On the criminal side sheriffs would preside over solemn trials. As far as civil business is concerned, sheriffs would hear ordinary actions, actions relating to adoption, summary applications, actions concerning personal and corporate insolvency, commissary business and fatal accident inquiries.