Solicitors must prepare for new system, says Dominic Scullion
‘Slow, inefficient and expensive.” That was the former Lord President’s characterisation of civil litigation in Scotland following a wide-ranging review of civil justice which concluded in 2009. Many of the recommendations from that review made it into the Courts Reform (Scotland) Act 2014 passed by the Scottish Parliament last year. The most significant reforms come into force on 22 September and litigators must be ready to embrace them and adapt their practices accordingly.
It is very likely the shifting of business from the Court of Session to the Sheriff Court and the creation of the new Sheriff Personal Injury Court will change the civil litigation landscape most radically.
The Court of Session has traditionally had a concurrent jurisdiction with the Sheriff Court for the majority of civil litigations. Along these lines, it was the prerogative of the solicitors for the pursuer to decide in which court to raise their client’s action, and there were perceived pros and cons of either option. The Sheriff Court, for example, dispenses justice more quickly than the Court of Session and the cost of litigating there is lower. However, the action usually requires to be raised in the Sheriff Court closest to the defender which might inconvenience the pursuer, solicitors and witnesses.
The Court of Session, on the other hand, has a Scotland-wide jurisdiction. Crucially, actions raised there can be conducted by advocates by right, whereas in the Sheriff Court a case requires to be certified as being suitable for the instruction of counsel; if such certification is not granted, the solicitor and advocate must share the one fee if both are to be paid for the case. Many low value cases were therefore traditionally raised in the Court of Session resulting in the country’s supreme civil court hearing a high volume of often non-complex actions, with a regularity not seen in most other jurisdictions.
As of 22 September, the exclusive jurisdiction of the Sheriff Court will increase from £5,000 to £100,000 resulting in actions with a value of under £100,000 having to be raised in the Sheriff Courts and the removal of such actions from the Court of Session. In addition, a new Sheriff Personal Injury Court will be created in Edinburgh with a Scotland-wide jurisdiction.
Also included in the reforms is the creation of a new type of judge, the Summary Sheriff, who will hear among other things housing actions, children’s hearings proceedings, and actions with a value of £5,000 or less (to be known as the Simple Procedure). In addition, Sheriffs Principal will no longer sit alone to hear appeals from the Sheriff but will instead sit as a bench of two or three in the new Sheriff Appeal Court. The “leapfrogging” of appeals from Sheriff straight to Inner House will also no longer be possible.
It will take months for the impact of these reforms to be known and many questions cannot be answered until then. We do not know, for example, how “popular” the Sheriff Personal Injury Court will be with solicitors.
It will be staffed by specialist personal injury Sheriffs but will be based in Edinburgh. Solicitors outside Edinburgh will therefore require to be satisfied that there are advantages of litigating in this new court (one such advantage could be the return of civil juries to the Sheriff Court) before they either travel to Edinburgh or share their fees with Edinburgh agents. It may well be that in time additional Scotland-wide personal injury courts will be opened in other cities. But the most significant question concerns the instruction of counsel in the Sheriff Court.
Many solicitors (and advocates) will hope it will be business as usual and will endeavour to set early precedent on certification of counsel in those cases which would have been raised in the Court of Session pre-reforms. It is not disputed there will be cases where certification will be appropriate. However, for the spirit of the reforms to be embraced, solicitors interested in and skilled at advocacy could take the opportunity to appear in court more regularly, and develop the jurisprudence of the reformed Sheriff Court.
• Dominic Scullion is a senior solicitor in Anderson Strathern’s dispute resolution department