04 Jun 2014

Bill to Reform Scottish Courts Published

Bill to Reform Scottish Courts Published

Laura Dunlop, Trainee Solicitor, provides an overview of the Courts Reform (Scotland) Bill, highlighting the controversial key provisions.

Laura Dunlop, Trainee Solicitor, provides an overview of the Courts Reform (Scotland) Bill, highlighting the controversial key provisions.

The Scottish Government published the Courts Reform (Scotland) Bill in February 2014, which has just completed the first stage of review within the Scottish Parliament. The bill takes forward many of the recommendations made by Lord Gill issued in his review of the Scottish civil courts which was published in September 2009. The purpose of the proposed legislation is to reform the rules of court to deliver a more efficient and responsive court system.

Amongst the key provisions of the bill is the raising from £5,000 to £150,000 of the minimum value threshold to bring a case in the Court of Session rather than the Sheriff Court (however, family cases and judicial reviews will still be able to be brought in the Court of Session).

Other significant changes include the introduction of a new tier of summary sheriffs who will deal with less serious criminal cases and less complex civil matters up to £5,000 in value under a simplified procedure.

The bill also provides for the creation of a new national Personal Injury Sheriff Court, where such cases will be heard by specialist sheriffs, and the creation of a new judicial post – the summary sheriff – to resolve lower value civil cases such as debt cases more swiftly and efficiently, while also dealing with summary criminal cases.

Furthermore, the legislation proposes to establish a new Sheriff Appeal Court and makes provisions about new procedures for appeals within the Court of Session to improve efficiency. New procedures have been proposed for judicial review cases in the Court of Session including the introduction of a three-month time limit for a claim to be brought.

In practice, the hope is that the civil justice courts become more effective and efficient, reducing delays, costs and bureaucracy and preventing the need for cases of relatively low value from being heard in the Court of Session which will no doubt appeal to our lender clients.

However, the bill’s publication did not pass without criticism from some members of the legal profession. Notably, the Faculty of Advocates raised concerns about the reforms, stating that restricting the Court of Session to hearing cases with a value of more than £150,000, with all others having to be heard in the Sheriff Court, would favour those with “deep pockets” and would create a disadvantage for Scottish litigants that are not faced by people elsewhere in the UK. The Faculty argue that if a case is brought in the Sheriff Court, the use of counsel has to be sanctioned by the court before the cost can be reclaimed from the other side if the party wins, a rule which has no equivalent elsewhere in the UK.

In May 2014, the Scottish Parliament’s Justice Committee published its stage one report on the proposed legislation. On the whole, the Justice Committee welcomed the bill but concluded that the proposed increase in the value of actions that can be heard only in the Sheriff Court, from £5,000 to £150,000, was too big a step.

The Committee Convenor Christine Grahame MSP stated: “Not only would these reforms perhaps restrict access to counsel, but there are concerns about the capacity of Sheriff Courts to deal with the increase in cases. Our committee recommends that the Scottish Government give serious consideration to lowering the monetary limit.”

Fiona Robb, Secretary to the Law Society of Scotland's Civil Justice Committee, said in response: “The Scottish Government is right to raise the threshold for cases being heard in the Court of Session; however we have consistently said that we believe the £150,000 threshold to be too high and would prefer to see the limit set at £50,000.”

The views of the Justice Committee have been welcomed by the Law Society of Scotland and the Faculty of Advocates. Both are pleased that their concerns over certain aspects of the bill have been recognised, whilst supporting many of its provisions.

At present, the bill is still at the second stage of consideration before the Scottish Parliament. Time will tell if the implementation of legislation with such ambitious changes to the justice system will be a success.

Laura Dunlop, Trainee Solicitor

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