How civil sheriff courts work here- Greg MacDougall
As its name suggests, it deals with personal injury cases only. “Personal injury” is widely defined as including “any disease or impairment, whether physical or mental.” ASPIC can also hear post-fatality cases where the fatality is caused by personal injury.
In the last full year before ASPIC opened, 2014/15, 9,210 personal injury cases were raised in Scottish courts - 3,015 at the Court of Session, 3,235 at local (i.e. non-ASPIC) sheriff courts as ordinary actions (for more than £5k), and 2,960 at local sheriff courts as summary cause cases (£5k or less).
The effect of ASPIC opening, together with the increase from £5k to £100k as the level at and below which litigation may not ordinarily be brought in the Court of Session, can be seen in the statistics.
In 2016/17, 539 personal injury cases were raised at the Court of Session, 2,069 at local sheriff courts as ordinary actions, 2,814 at local sheriff courts as summary cause cases, and 2,956 at ASPIC.
This decrease in Court of Session cases and corresponding increase in ASPIC cases has held to 2020/21 (the most recently published statistics) - 593 personal injury cases started at the Court of Session, 1,993 at local sheriff courts (ordinary actions), 1,281 at local sheriff courts (summary cause cases) and 2,944 at ASPIC.
Personal injury claims for more than £5k can be litigated at either ASPIC or a local sheriff court as ordinary actions and if we splice the data by case type further, intriguing trends emerge. In the years 2016/17 to 2020/21, inclusive, road traffic incidents accounted for 8,459 of personal injury cases raised as ordinary actions at local sheriff courts, significantly more than the 4,477 such cases at ASPIC. Yet the opposite is true for workplace incidents, and to a lesser extent, clinical negligence claims, with more claims litigated at ASPIC than as ordinary actions at local sheriff courts.
The popularity of ASPIC for litigating personal injury claims arising from workplace incidents can probably be explained in part by the lower minimum value of over £1k for such claims to be raised there in comparison to as an ordinary action at a local sheriff court.
The popularity of local sheriff courts for litigating personal injury claims arising from road traffic incidents could, at least in part, be because of perceived local sheriff knowledge of particular roads.
Differences between local sheriff courts and ASPIC include the personal injury specialism of the ASPIC sheriffs and the fact that jury trial is competent at ASPIC but not local sheriff courts. Evidential trial at “proof”, by a sheriff sitting without a jury, has been far more common at ASPIC than jury trial with, I understand, only two jury trials fully proceeding at ASPIC so far.
The personal injury specialism of sheriffs at ASPIC could explain why clinical negligence claims are more frequently litigated there than at local sheriff courts because such claims tend to be more complex than other personal injury claims. Work-related personal injury claims can also involve more complexity than road traffic claims which may also, in part, explain why the former are more frequently litigated at ASPIC than local sheriff courts.
When the pandemic struck, ASPIC was at the forefront of the shift to increased digital processing and remote hearings, with both procedural and evidential hearings held by video-conference. While procedural hearings continue at present by remote means at this court, just last month evidential hearings returned to in-person by default at ASPIC.
With the success of ASPIC over the past seven years, could we see further specialist civil sheriff courts in Scotland? Legislation is already in place to allow this to happen. While there do not appear to be any definite Scottish Government proposals for any such further specialist sheriff courts, they are currently committed to “ensure a review of environmental justice, and the case for an environmental court … commencing by spring 2023.”
Greg MacDougall is a Partner and solicitor advocate, Clyde & Co
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