The Gill Review: a personal injury practitioner’s perspective

The Cabinet Secretary for Justice welcomed Lord Gill’s report in the Scottish Parliament by describing it as “hard hitting” and “the first system wide review in modern times”. The writer concurs in his appreciation of the work carried out by the review team; in particular the breadth of research and the practical proposals to improve the management of cases.

This article seeks to examine two of the major proposals in the report, the first of which so far has been subject to little public discussion. The primary and most significant proposal is the substantial reduction in top tier judges. The second proposal is the increase of the privative limit for the sheriff court to £150,000. Would these substantial alterations to the Scottish Civil Justice System improve access to justice?

Judicial quality

The report comments: “we estimate it would take eight to 10 years for the full complement of district judges to be appointed, though this would depend upon the rate at which sheriffs currently in office retire... by the end of the transitional period, we estimate that the existing shrieval complement would be reduced by around half the current number of permanent posts”. Consequent on the transfer of first instance and appellate business to the sheriff court, “there will be a substantial reduction in the number of senators”.

In the initial debate on the Scottish Parliament there was no comment on what would be a major downgrading of the status of the Scottish judiciary. In fact in the Parliament one MSP, Mr David Whitton, commented “How much will it cost to recruit an unspecified number of new full time sheriffs”?

The report makes it clear that a desired outcome of the reforms is to “make Scotland an attractive forum for the resolution of disputes by providing high-quality judicial decisions at every level”. There was from respondents “considerable support for retaining the commercial court, specialist intellectual property judges and specialist procedures with a view to developing a sound case law, maintaining Scotland’s competitiveness with other jurisdictions and enhancing the international reputation of Scotland’s legal system”.

This desire was certainly welcomed in the Parliament, where concerns were expressed by the Justice Minister to encourage Scottish commercial claimants to shun the English jurisdiction and litigate in Scotland.

Both in the review and the Parliament there is an implication that personal injury actions are an impediment to the attractiveness and success of the Court of Session in dealing with commercial actions. This is not correct; what the writer seeks to show is that the inclusion of personal injury actions in the Court of Session is essential to retain a viable supreme court with the top quality judiciary which is required to develop the stature of Scotland’s legal system.

The Court of Session commercial court has three dedicated judges. The Lord President commented in his address at the ceremony holding the opening of the legal year, on 18 September 2009: “Civil business has tended to be the Cinderella of the system… despite these disadvantages there have been sterling successes. The amount of commercial business attracted to the court continues to increase – surely a sign of the quality of treatment and disposal by the dedicated judges there”. In an excellent article in the Solicitors Journal on 27 October 2009, a leading commercial litigator comments: “Commercial clients litigating in Scotland, for instance, have benefited for many years from the excellent service provided by the commercial court in the Court of Session”. From these remarks it is apparent that the current commercial process in the Court of Session is functioning well.

It is clear from the review itself, from the Parliament and from above commentators that it is essential to retain a high quality judiciary. In the introduction Lord Gill expresses his appreciation of the lucid and imaginative thinking of Dame Hazel Genn, and comments: “Our own approach is in general similar to that of Dame Hazel in her recent Hamlyn Lectures”. However, what is made clear by Dame Hazel Genn is that in relation to English law and courts, “The reputation… is to a large extent based on a foundation of respect and trust in the English judiciary… that is why appointing judges of the highest calibre and ensuring that candidates of the highest calibre put themselves forward for consideration is critical. This is about securing the quality of the judiciary for the future and ensuring that it performs to the highest standards”.

As Lord Wolff pointed out: “The standard of justice in a particular jurisdiction… continues to depend primarily upon the quality of its judges”. It is hard to see how the substantial reduction in the number of senators and sheriffs would improve access to justice. The removal of posts at the top level in the judiciary would impact both on the availability of senior and experienced judges to handle complex cases, whether commercial or personal injury, and also impact on the quality of decision making.

Privative jurisdiction

The concern I have expressed above regarding the impact of the reduction in the top level of judges is linked to the effect (which personal injury practitioners would consider to be draconian) of the increase in the privative jurisdiction limits. Lord Gill proposes an increase of the privative jurisdiction of the sheriff court to £150,000. It is clear from the review that the introduction of the £150,000 entry limit to the Court of Session is because currently “most of the court’s case load consists of actions of modest value and of no legal importance”.

Chapter 4 of the report analyses detailed figures provided by insurers of 93 personal injury actions in the Court of Session between 2004 and 2007. Conclusions are thereafter drawn from these figures both in relation to the cost of Court of Session actions and the impact of the increase of the privative limit to £150,000. A detailed analysis of the figures would however give rise to questions as to the validity of any conclusions drawn from them.

First, the report admits: “the data provided should be treated with care. Though cases might have been scrupulously selected according to principles of scientific random sampling, there is no guarantee that the cases handled by this respondent’s firm, are representative of the general population of personal injury actions proceeding in the Court of Session or sheriff court”.

The cases involved amount to around 23 a year; the current annual volume of personal injury actions in the Court of Session is around 2,500 cases. No indication is given as to whether the 93 actions relate to industrial disease or multiple defender cases, which will increase costs. It is not made clear that the apparently high level of costs could be avoided by the defenders submitting an earlier tender.

The report acknowledges this: “insurers' liability in expenses may be less if they wait until proceedings are commenced and lodge a tender with the defences”. The report in fact suggests that the pre-litigation block fee be increased. Far therefore from reducing the cost of litigation, the report is suggesting an increase in block fees. The report admits that by the date of trial, recoverable fees in England & Wales may be twice what they would be in Scotland.

The unfortunate consequence of the statistics given above is that MSPs may not have fully understood the manner in which cases can be settled and how costs can be avoided by insurers settling the case early. The Justice Minister commented: “it is absurd that more than half the cases that come before the Court of Session cost more to sue than the sum being sued for. An average of 222% in the lowest value cases”. This is simply incorrect.

Basing its conclusions on the above figures, and statistics founded on the level of sum being sued for in personal injury, ordinary and commercial actions, the report concludes that somewhere just below 36% of business initiated in the general department, and somewhere just below 74% of all actions raised under the commercial procedure, would remain in the Court of Session if the privative jurisdiction of the sheriff court were raised to £150,000. The writer’s analysis of the figures provided reveals a far greater impact on Court of Session business than suggested in the report. Consideration of actual defended cases in the Court of Session, i.e. those that are likely to involve any meaningful court time, reveals that because the personal injury cases are invariably defended and because a measurable percentage of the ordinary and commercial cases will be undefended, the actual impact on Court of Session business by increasing the privative jurisdiction would be to remove about 75% to 80% of the cases from the Court of Session.

The impact of the increase in the privative jurisdiction is compounded by the proposed new sanctions for non-compliance.

Court workloads

It is clear from the report, and legal and parliamentary comments, that there is no desire to abolish the Court of Session as the supreme court. In fact a properly functioning and viable supreme court is essential to allow the court to survive in relation to both commercial and other business and allowing high-quality judicial decisions to be given.

If there is any doubt about the impact of the withdrawal of the bulk of personal injury work from the Court of Session, confirmation is given by the report, on the Chapter 43 personal injury procedure from 1 January 2009 to 31 March 2009. Showing statistics of cases registered, the report comments: “to indicate how central the personal injury cases are to the functioning of the general department, of all the processes (including appeals, family and ordinary actions) registered at court during 1 January 2009 to 31 March 2009, 70% were personal injury actions. The graph below shows that PI cases are dominating new actions raised in the Court of Session”.

It is the writer’s submission that these cases in fact benefit the court. They provide essential funding by way of court dues (which are higher in the Court of Session than the sheriff court). In his address to the civil justice conference on 20 June 2008, Lord Rodger commented: “the expertise of many Scottish solicitors and counsel in the field of personal injuries law is obvious, but it is not accidental. It has been developed because of the system under which so many cases have been taken to the Court of Session… when considering proposals to divert much of that litigation to the sheriff court throughout Scotland, we have to count the cost of potentially losing this concentrated body of expertise… there is, of course, room for discussion about the level of claims which should be brought in the Court of Session. Nevertheless, I am quite sure that there should continue to be a first instance court to which people can take their case and the expectation that it can be dealt with, straight away, by a judge who is one of the best legal minds in the system”.

The proposal to increase the privative jurisdiction to £150,000 is surprising when looking at the English limit of £25,000 in the High Court for non-personal injury cases and £50,000 for personal injury cases. The report itself stresses the success of the Chapter 43 procedure in the Court of Session and comments: “apart from the benefits that Chapter 43 procedure confers, practitioners on both sides point to the economies and efficiencies of scale that accrue through centralising all but the lowest value personal injury litigation in the Court of Session”. The value of the Court of Session’s decision making (apart from Donoghue v Stevenson) to UK health and safety law cannot be overstated.

Will the same level of “access to justice” be achieved by removing the bulk of personal injury work to the proposed new personal injury court based at Edinburgh Sheriff Court? In the writer’s submission it would not. The success of the Court of Session Chapter 43 procedure depends on a tripartite relationship. This depends on the procedure itself, the Court of Session administration and judiciary, and finally and importantly access to counsel (including of course solicitor advocates) without the requirement of sanction for counsel’s assistance. The use of counsel in settling personal injury cases in the Court of Session has been a major factor in the success of the system; the report fails to address this issue.

It could be said that sanction might be requested at the beginning of any personal injury case in the sheriff court; this will invariably be opposed by defenders, so are we to have several hundred opposed motions every year in the sheriff court regarding sanction? In the year 2008, 232 personal injury actions were raised in Edinburgh Sheriff Court. In the same period in the Court of Session 2,425 personal injury actions were initiated. It is likely that Edinburgh Sheriff Court would have to deal with an additional 1,500 to 2,000 new personal injury cases. This workload could apparently be handled by two specialist sheriffs.

The above workload would be increased further by jury trials being referred to the new central personal injury court from other sheriffdoms. There clearly will be insufficient space in Edinburgh Sheriff Court to cope with the volume of additional business. One then assumes that the court service would be looking to transfer the business to suitable estate and that the cases would return to the Court of Session, which would become an Edinburgh Sheriff Court annexe. This is not an appropriate use of resources, and questionable particularly in view of the cost of the current redevelopment of Parliament House. The estimated cost is £63 million.

It is to be hoped that a thorough and well informed debate will take place in the Scottish Parliament looking at the practical problems of implementing these more controversial aspects of the review.