Graham Wakeford v Advocate General for Scotland (2015)

A motion to remit a "small and straightforward" action from the Court of Session to the All Scotland Personal Injury Court has been refused by Lord Boyd of Duncansbury.

The case had been raised and signetted in the Court of Session in September 2015, some weeks prior to the coming into force of Section 39 of the Courts Reform (Scotland) Act 2014, which raised the private jurisdiction of the sheriff court to £100,000.

It was accepted by all parties that the facts of the case were uncomplicated and liability had been admitted. The pursuer had sustained an injury to his shoulder while lifting the lid of a flam vault on a boat and was absent from work for three weeks. He returned to full duties some five months post-accident and any wage loss was minimal. The sum sued for was £25,000.

Counsel for the defender accepted that the new rules were not applicable given that the action had been raised before they came into effect.  That being said, she submitted that whilst her motion proceeded under the "old court rules" it would be wrong to simply ignore the existence of the new PI Court.  She contended that there were clear advantages to allowing the remit for such a simple case – not least that the PI Court enjoys the same streamlined procedure which is currently in effect in the Court of Session and there is scope for the instruction and sanction for Counsel.

Counsel for the pursuer took the view that given the PI Court had not been in existence at the time the action was raised, it was incompetent to remit the case to that Court.  He argued that the pursuer had elected to raise the case in the Court of Session and should not now be deprived of that choice.  Counsel also pointed out that the pursuer would most likely have his case heard in the Court of Session in June 2015, whereas it was entirely unclear when a date would be available in the PI Court. In short, he argued that the uncertainties put the pursuer at a huge disadvantage. 

In reaching his decision to refuse the motion, Lord Boyd took the view that the statutory power to remit cases should be seen as having been introduced to meet the needs of particular cases, not to affect the "general redistribution" of work from one Court to another.   Rather unnecessarily, he commented that Parliament had not provided that all cases under £100,000 which had been raised in the Court of Session prior to the commencement of the Act should now automatically be remitted. Overall, he took the view that a remit in the circumstances would cause unnecessary expense for this pursuer and uncertainty not only for him but also for all other pursuers involved in similar actions currently before the Court. 

Lord Boyd's decision leaves little room for doubt as to the stance the Court will take in relation to remitting even the most straightforward of low-value cases raised before 22 September 2015, to the PI Court.  To some extent this may seem counter-intuitive given that the PI Court was largely introduced to avoid the costs associated with simple cases raised and run within the Court of Session. It is clear that the landscape of Scottish civil litigation will continue to develop as the new PI Court takes shape and, as this case demonstrates, the challenges it presents to litigators are unlikely to cease any time soon.