Make sure you are not left with egg on your face by learning about civil court reforms

It is essential to keep abreast of changes, writes Andrew Gilmour

Picture: PA
Picture: PA

For more than 150 years, Punch magazine entertained generations of readers with cartoons ridiculing the establishment and capturing every absurd detail of life in Britain. The magazine even introduced new phrases to our language, including “curate’s egg” in 1895.

In a famous cartoon by artist George du Maurier, a Church of England curate – or trainee minister – is having breakfast with his bishop and is served a bad egg, for which the bishop apologises. But the curate replies that “parts of it are excellent”, giving rise to that euphemism for a mixture of bad and good.

The measures being introduced in Scotland on 22 September as part of the civil court reforms certainly fall into the category of the “curate’s egg”. On one hand, the reforms allow for greater use of Sheriff Courts instead of the Court of Session, lowering the cost of appointing lawyers. Yet, on the other, the new use of civil juries in the Sheriff Court could raise the level of compensation payments.

Under the reforms, if a personal injury litigation case is valued at less than £100,000 then it can no longer be raised in the Court of Session. Instead, pursuers will have the choice of bringing personal injury litigation to their local Sheriff Court or the new All-Scotland Personal Injuries Sheriff Court in the Scottish capital.

So, instead of having to instruct an advocate or solicitor-advocate to represent them in the Court of Session, parties will be able to appoint solicitors to represent them in a Sheriff Court. If they are seeking more than £100,000 in relation to a personal injury then they will also have the option of going to the Court of Session.

In a similar vein, motor claims below £5,000 will be covered by the new Simple Procedure in local Sheriff Courts, which again should lower the cost of taking legal action. While we’re still waiting to find out some of the details about the Simple Procedure, the whole ethos of the reforms is about making it cheaper and easier to take a case to court and so these measures should also help to keep costs under control. Changes being introduced should help to save money for everyone taking part in court proceedings, whether they are pursuing a case or they are defending themselves.

Indeed, these are the most significant changes that have been introduced to our court system for generations. These reforms are balancing the needs of enhancing access to justice by creating a larger role for local Sheriff Courts while also ensuring that expertise is preserved by introducing the new All-Scotland Personal Injuries Sheriff Court.

Having the specialised personal injuries court located in Edinburgh will also be a factor that litigants will need to consider.

Some clients will opt for their own local sheriff court, while others will want the dedicated option offered by the new court in Edinburgh.

More settlements could also be reached out of court because the Scottish Civil Justice Council is going to consider making the current voluntary pre-action protocols into a compulsory scheme. Avoiding court in the first place is certainly one of the easiest ways to keep costs down.

The other side of the curate’s egg is the ability of the new All-Scotland Personal Injuries Sheriff Court to hold civil jury trials. In the past, juries only sat in civil cases within the Court of Session and in the most serious criminal trials.

Businesses and their insurers could face paying out larger sums in court cases under these changes because civil juries have been known to make very large awards in some cases.

For example, back in June, a jury in the Court of Session awarded £140,000 to a 35-year-old widow following the death of her partner in an industrial accident.

That’s why it’s so important for both businesses and their insurers to be aware of all of these changes in the law and be prepared for the use of jury trials. No company wants to be left with egg on its face – regardless of whether that egg has been served to a bishop or to a curate.

Andrew Gilmour is a partner with BLM