Act will transform personal injury claims

The Act is the single most important piece of Scottish legislation in the field of civil justice reform for over a century. Picture: Victoria Stewart

The Scottish court system has been criticised for being “slow, inefficient and expensive” but, following Lord Gill’s review of the Scottish civil court system in 2009 and the subsequent implementation of the Courts Reform (Scotland) 2014 Act, the court system is firmly being dragged into the 21st century, and about time too.

The Act is the single most important piece of Scottish legislation in the field of civil justice reform for over a century. We will see significant changes to how civil business is conducted in the Scottish courts as one of the fundamental changes relates to the value of a claim that can be raised in either the Sheriff Court or in the Court of Session, Scotland’s highest civil court.

Currently, the majority of business dealt with by the Court of Session relates to personal injury claims but the only restriction in place is that the value of the claim must be greater than £5,000. Only claims for £5,000 or lower value must be raised in the Sheriff Court. The cost of litigating in the Court of Session is significantly higher than the Sheriff Court and it has long been argued that there are too many lower value cases running in the Court of Session generating legal costs that are disproportionate to the actual value of the claim.

The new limit of £100,000 seeks to address this issue, with only claims exceeding that figure being allowed in the Court of Session (or complex lower value claims, with the approval of the court). This will mean a substantial shift in personal injury cases from the Court of Session to the Sheriff Courts.

In anticipation of this, a new specialist Personal Injury Court will be established in September. This Court will be in Edinburgh but will have a Scotland-wide jurisdiction.

Specialist summary sheriffs will also be appointed with the introduction of a new simplified procedure for court actions of £5,000 or less together with a new Sheriff Appeal Court with jurisdiction in civil cases in 2016. Jury trials will continue to be available in personal injury actions but only in the new Personal Injury Court. The right to a civil jury trial is currently only available in the Court of Session.

Further reforms in relation to how litigation is funded and how costs are awarded in court actions are in the pipeline following the Scottish Government’s recent announcement of a consultation on Sheriff Taylor’s wide-ranging review of funding in civil litigation. The consultation period ends in April.

The stated aim of these reforms is to transform the Scottish civil courts through the improved use of technology, active case management, greater administrative systems and specialism, making them more efficient and more accessible for Scottish businesses and the public alike. The creation of the stand-alone Personal Injury Court should ensure that cases are heard at the correct level, reducing costs for all parties engaged in the litigation process. It is expected the personal injury court will offer a more continuous flow of business that currently the local Sheriff courts cannot offer.

Whilst modernisation is welcomed by the Scottish legal profession, there remains concern about the impact of the recent Sheriff Court closures and budget cuts, and how the Sheriff Court system will cope with the significant increase in case numbers.

Key to the success of the reforms is ensuring that the Personal Injury Court is properly resourced and equipped so that when it opens its doors in September, teething issues are minimised or avoided.

It had also been hoped the rules governing the conduct of parties prior to raising court actions would have been tightened in tandem with the opening of the new court. The current situation is only covered by a voluntary set of rules and, to date, courts have struggled to adopt a consistent approach to pre-litigation “transgressions”. A compulsory framework is required but this is unlikely to appear until 2016, which is felt by many commentators to be a missed opportunity to tie such a change to the new Personal Injury Court.

Whilst this is an exciting time for Scotland’s legal profession, it will also be a testing time with many lessons to be learned along the way. What is clear is that the Scottish civil court system is about to change beyond recognition and it must be hoped that the outcome matches the vision.

• Douglas Keir, a partner at Weightmans LLP (Glasgow), is an accredited specialist in personal injury law.