Scots court reforms aim to cut costs and time

The proposals, set out in response to a report by Lord Gill, now Scotland’s most senior judge, will see thousands of civil cases appear before new “summary sheriffs” to ease pressure on the Court of Session.

A specialist personal injury court will also be created to deal with rising numbers of cases under the plans, which have gone out to consultation.

Audit Scotland estimates the inefficient and outdated justice system is currently wasting £55 million a year.

The proposals are based on the recommendations made by Lord Gill in his 2009 report in which he described Scotland’s civil courts as “based largely on an unreformed Victorian model”.

“The Scottish civil courts provide a service to the public that is slow, inefficient and expensive,” he said at the time. “Minor modifications to the status quo are no longer an option.”

The Scottish Government hopes to address these concerns by moving about two thirds of cases initiated at the Court of Session, where they appear before Scotland’s most senior and best paid judges, to sheriff courts.

This is despite a separate review looking at widespread closures, including 11 sheriff courts, also aimed at saving money.

So far, the Scottish Government has not been able to say how much it hopes to save, but insists the changes should not result in extra costs for the justice system.

Despite directing more work at fewer courts, it does not expect to have to employ additional sheriffs.

Instead it plans to replace retiring sheriffs with summary ones.

Justice Secretary Kenny MacAskill said: “The civil justice courts have remained relatively unchanged for more than a generation.

“These reforms will help us ensure that the right cases are heard in the right places and therefore reduce unnecessary delays, cost and bureaucracy.

“The proposals will also mean that Scotland’s top civil judges will deal with Scotland’s most complex civil legal cases, with others being dealt with in local sheriff courts where they will still be subject to the same level of scrutiny as before, and will be heard more quickly and efficiently, to the benefit of all.”

The proposals received a qualified welcome from opposition politicians. But there was concern the changes could put too much pressure on sheriff courts.

Scottish Conservative chief whip John Lamont said: “While many of the aims outlined today are welcome, it is utterly shortsighted to close a quarter of sheriff courts one minute, then send them considerably more work the next.

“The SNP has already being told that fewer sheriff courts would struggle to cope with the criminal caseload they had been left with.

“So, Kenny MacAskill’s answer to that is to send even more cases to already overworked sheriff courts.”

Lewis Macdonald, Scottish Labour justice spokesman, said: “More work is being pushed towards the sheriff courts, but no more resources are being created. All the evidence suggests that sheriff courts are already creaking at the seams.

“Putting more civil cases through the sheriff courts could make those cracks more serious still.

“The fundamental point of Lord Gill’s review was reform, but not reform with cuts, and that’s sadly what we are seeing.

“In a number of areas in this parliament, justice measures are being brought through without the necessary resources to do them properly. My concern is this is more of the same.”

Summary sheriffs will be a new post and will earn less money than current sheriffs, although they will have the same qualifications. They will also deal with low level criminal cases, such as breach of the peace and assault.

The changes are also expected to lead to a reduction in the number of judges at the Court of Session - currently 34 - who would have less work.

Under the Scottish Government plans, the claim threshold to bring a case before the Court of Session would increase from £5,000 to £150,000, those beneath this level would instead be heard by sheriffs, who have previously only dealt with very low value cases.

As well as reducing government costs, this will also make it cheaper for people bringing legal action and the insurance companies defending them.

According to the consultation, settling a claim in the Court of Session costs between £30,000 and £40,000 per party, compared to £10,000 in the Sheriff Court.

The personal injury court will be based in one building and will have two specialist sheriffs, who will have the ability to order a jury trial if they believe it necessary.

People will have the choice whether to have their case heard at a local sheriff court, or at the specialist personal injury court, which is expected to be based in Edinburgh.

Three-quarters of around 5,000 cases initiated at the Court of Session each year relate to personal injuries.

It is hoped the court will be able to process them quicker by building specialist knowledge among the sheriff and practitioners.

Another proposal in the consultation will see people given just three months to apply for a judicial review, challenging a decision or action by a public body.

This has raised concerns among lawyers who fear it may be impractical and will deny the public justice.

Austin Lafferty, president of the Law Society of Scotland, said: “We have concerns about some of the proposals including the time bar on judicial review cases being reduced from there being no limitation to three months.

“Judicial reviews are frequently complex and difficult court actions.

“They are often about holding the government and public bodies to account in their fulfilment of their statutory duties and are an important means for people to assert their rights.

“Three months will often be too short a period to bring forward such cases.”

Despite the concerns raised the Scottish Government, which has been sitting on many of Lord Gill’s proposals for more than three years, believes the time is now right for reform.

A Scottish Court Service spokesman added: “As part of the Scottish Government’s Making Justice Work Programme we are involved, in collaboration with other justice organisations, in planning and delivering court reforms in a managed way, including those proposed following Lord Gill’s review and now outlined in the Scottish Government consultation.

“Our own, recent, consultation sets out a future court structure that will accommodate proposed justice reforms, improve services and be affordable in the long term.

“The Scottish Court Service is currently analysing the responses to the consultation and expects to put it’s final proposals to the Scottish Parliament by the summer.”

Lord Gill published the biggest review of the civil justice system in modern times in 2009.

He presented more than 200 recommendations in his Scottish Civil Courts Review, saying changes in social and economic life in recent decades had left a structure of civil justice

that was “seriously failing the nation”.

Some of his recommendations are already being introduced, while others are in the new consultation.

They include:

• Each region should have specialist sheriffs for solemn crime, general civil, personal injury, family and commercial.

• A national personal injury court should be created in Edinburgh, so pursuers can chose between local justice or a court with

an all-Scotland jurisdiction.

• Procedural business in sheriff courts should be conducted by e-mail, telephone, video-conferencing, or in writing.

• The Scottish Government should offer in-court advice services, such as housing support.

• Increased use of IT, including video and telephone conferencing.

• Better case management should include early disclosure of documents and greater use of witness statements in place of oral testimony.

• Petitions for judicial review should be brought promptly, or at least within three months.

• The Scottish Government should raise awareness of legal expenses insurance.