Reforms should lead to improved system

The Courts Reform (Scotland) Bill was passed by MSPs last month. Picture: Ian Rutherford

The Courts Reform (Scotland) Bill was passed by MSPs last month. Picture: Ian Rutherford

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Sheriff courts will shoulder bigger burden, says Lynn Richmond

THE Courts Reform (Scotland) Bill was passed by MSPs last month and should become law shortly. The bill, which was largely a result of the Lord Gill’s review of the Scottish civil courts, is likely to result in the transfer of business from the Court of Session in Edinburgh to local sheriff courts.

The changes will be implemented primarily by a change in the rules to the monetary limits applied to cases which can be raised in the Court of Session and in the sheriff’s powers being extended to cover issues previously reserved to the Court of Session.

The sheriff courts will now have exclusive jurisdiction to hear cases where any monetary award sought does not exceed £100,000. This will prevent litigants from raising lower value cases in the Court of Session, which will be reserved for higher value, complex cases. This has, to some extent, always been the intended function of the Court of Session but the newly increased monetary limits go some way to ensuring that is borne out. Cases where the value does not exceed £100,000 will have to be raised in the sheriff court regardless of complexity.

The reforms will also give the sheriff courts power to hear cases which were previously within the exclusive jurisdiction of the Court of Session. In particular, the sheriff court will now have the power to determine cases where a party seeks to set up or to reduce a document, such as a will.

Another notable increase in the sheriff’s power is the ability to grant an interdict (or injunction) which extends beyond the boundaries of a particular sheriffdom. Scotland is split into six sheriffdoms and, at present, an interdict granted in one sheriffdom is not effective in any other sheriffdom. The reforms will now give the sheriff power to grant an interdict which extends beyond the sheriff’s own geographical jurisdiction.

Previously, only the Court of Session could grant a Scotland-wide interdict and this change will be particularly helpful to litigants who need the protection of a wider interdict but who otherwise would not have chosen, or could not afford, to litigate in the Court of Session.

While the reforms have been billed as a step towards a more modern and accessible system of civil justice, there are some concerns about the ability of the sheriff courts to cope if there is a significant increase in the volume of business they must deal with. The effect of the reforms will be to transfer a certain amount of business from the Court of Session to the sheriff courts. However, the reforms come in the midst of a number of sheriff court closures which have already resulted in an increase in the volume of work in the remaining neighbouring sheriff courts.

Certainly, some of the sheriff’s existing functions in housing cases will be transferred from the sheriff court to the new First-tier Tribunal in terms of the Housing (Scotland) Act 2014. However, it will remain to be seen whether the court reforms do result in a notable increase in business in the sheriff courts and, if so, how the sheriff court system will cope with an increased workload.

A number of sheriff courts are already forced to operate with a very limited number of days set aside for evidential hearings. Often this results in one case being heard over a period of months. In some of these cases, the increased costs of running such a case in the Court of Session (where a number of consecutive days can be assigned for a hearing, if necessary) is outweighed by the need for a more expedient resolution of the case. Many litigants will not have the option of electing to pursue those cases in the Court of Session.

It will inevitably take some time for the reforms to be implemented in full and for the results to filter through. Whatever the result of the changes, the proposed reforms have to be welcomed as a step in the right direction in improving the civil justice system.

• Lynn Richmond is an associate with Turcan Connell www.turcanconnell.com

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