Lynne Macfarlane: Legislative changes to civil justice have failed to deliver on their promises

Interested observers agree that the last five years have seen seismic change in the determination and administration of civil justice in Scotland. Both the UK and Scottish governments have been responsible for implementing the changes, but with diametrically opposing aims: to reduce the cost to business of claims arising where there is no proof of fault, but liability is imposed via EU compliant regulation on the one hand; and to promote access to justice for all on the other.

Lynne Macfarlane is a partner with Clyde & Co

Those of us who specialise in the field havehad to adapt quickly. Not a month goes by without a substantive change to civil process, but have any of the legislative changes delivered on their promise? I suspect the majority of practitioners on both sides of the fence would say no.

In October 2013 the UK government removed civil liability for breach of statutory duty under the Health and Safety at Work Act 1979 and accompanying regulations. Pursuers could no longer rely upon strict liability for workplace accidents set out in health and safety legislation to succeed. However, unsurprisingly the courts continue to scrutinise any defender’s compliance with the statutory framework in order to decide whether common law has been breached, so the impact has been negligible.

With the aim of increasing access to justice and reducing legal cost, the new All Scotland Personal Injury Court opened its doors in September 2015. Designed to deal with all personal injury claims worth £100,000 or less, in one fell swoop it has removed 30 per cent of personal injury cases from the Court of Session. Unlike the Court of Session, instruction of an advocate or solicitor advocate is not mandatory, thereby ensuring a reduction in legal spend, but the reality is that sanction for the use of counsel is granted fairly routinely in even lower value cases where the subject matter is deemed to be sufficiently complex.

In November 2016 the procedure for small claims and non-personal injury summary cause actions was replaced by Simple Procedure. In the same month, the governance of pre-litigation conduct was formalised with the introduction of a Scottish Compulsory Pre-Action Protocol for personal injury claims, which for the first time introduced sanctions for parties in default of the provisions at pre-litigation stage, bringing Scotland into line with England and Wales.

The latest in the long line is the introduction of pursuers’ offers. In force from 3 April 2017, the aim is to encourage early settlement of civil claims where an order for payment is sought. An offer must be lodged with the court in a specified form and can be made at any time before the court or jury retires to consider judgment. If the offer is to be accepted, that must be done within a reasonable time. If the court deems the offer has been accepted too late, thereby prolonging litigation, the court is entitled to award interest on the sum accepted, and penalise the defender by finding them liable for payment to the pursuer equivalent to a 50 per cent increase in fees incurred between the offer being made and accepted.

Pursuers’ offers are not new. They were introduced at the Court of Session in 1996 but revoked within two months. Will they meet the stated aim of reducing the length of litigation? That seems unlikely. Their success depends upon their adoption by pursuers’ solicitors. Thus far, take-up is low and largely confined to the latter stages of the action, when both parties are focused on the economic impact of proceeding.

Lynne Macfarlane is a partner with Clyde & Co