Significant reforms to the Scottish civil court system have been introduced which commenced in earnest from September 2015. We set out some of the key changes and consider the implications.
In 2009 the Scottish Civil Courts Review made wide ranging recommendations about modernising the civil courts system in Scotland. At that time Scotland had a two tier structure: the Sheriff Courts and the (higher level) Court of Session.
It was felt that the system could be more efficient and that some actions were being raised at too high a level in the court system for the subject matter and value. The overriding objective of the Review was for cases be heard at the most appropriate and effective level in the court system.
The key changes subsequently agreed by Parliament have now been introduced.
National personal injury court
Edinburgh Sheriff Court has been designated as having national jurisdiction in personal injury actions. Six Sheriffs have been designated as Specialist Personal Injury Sheriffs, all with a relevant background. Cases can still be raised in the local Sheriff Court if it has jurisdiction.
With a few exceptions, all personal injury actions for up to £100,000 will have to be raised in the Sheriff Court. Only cases seeking damages of a greater amount can be raised in the Court of Session.
The change in the exclusive jurisdiction from £5,000 to £100,000 will lead to a very significant increase in the volume of work at the Sheriff Court. We expect Summary Sheriffs to be appointed next year who will hear claims of up to £5,000, under what is to be called the ‘simple procedure’.
New appeal court
As from January 2016, appeals from the Sheriff Courts will be heard in a new Sheriff Appeal Court. This appeal court has an all-Scotland jurisdiction, which will ensure that there is consistency in the interpretation of the law.
The Sheriff Appeal Court can sit with a single appeal judge or as a bench of three or five in more complex cases. In addition, there is the option to refer complex cases to the Court of Session.
Why was change needed?
- The Court of Session was simply overloaded with cases. Judges were often spending time considering cases which were not appropriate/proportionate for the highest civil court.
- Any claim over £5,000 could be raised in the Court of Session. This led to a significant volume of personal injury cases being raised there that were arguably better suited to the Sheriff Court. Many cases were being settled for a few thousand pounds, leading to the costs far outweighing the sum awarded to the claimant.
- A significant number of appeals were being taken to the Court of Session as no leave was required. Cases which had no real prospects of success were taking up a significant amount of time.
These reforms should lead to cases in Scotland being dealt with proportionately and at an appropriate level. This is particularly so in personal injury cases, where we have frequently seen claims that are clearly worth less than £10,000 being raised in the Court of Session.
They should also free up Court of Session time, creating capacity to allow the Court of Session to deal promptly with the most important and difficult civil cases in Scotland.
However, only time will tell if the reforms will fully address the recommendations by the Scottish Civil Courts Review.
We now also expect that a mandatory pre-action protocol will be introduced in September 2016, so it really is a case of ‘all change’.