Opinion column: Alistair Dean

The Scottish Government is consulting on its draft Court Reform (Scotland) Bill, which seeks to implement, in part at least, recommendations of Lord Gill’s civil courts review.

As Kenny MacAskill says in his foreword: “Lord Gill’s diagnosis was that Scotland’s civil courts today are based largely on an unreformed Victorian model, sometimes characterised by an unacceptable delay”; and “practitioners of 100 years ago would have little difficulty picking up the threads of today’s courts”. I agree.

The headlines of the draft legislation are: increasing the privative jurisdiction of the sheriff court to ￡150,000; a new “summary sheriff” judicial tier; a new sheriff appeal court; a specialist personal injury court; improved Court of Session judicial review procedure; and facilitating general modernisation of civil procedures.

Many of these proposals seem sensible enough to me. One only has to look at the Court of Session rolls to appreciate how many personal injury actions go through that court, and I suspect that many of them are for relatively small sums.

In my opinion, however, the key to successfully modernising the civil court system is as much about changing the rules themselves, a matter to be left to the Court of Session with the assistance of the Scottish Civil Justice Council, as about the court infrastructure. Let’s hope those rules are amended sooner rather than later.

Unless the rules are radically changed, the bill will not affect, or could negatively impact on, the running of commercial disputes. It is important for Scotland to be seen as an attractive forum for commercial litigation, just as the enlightened Arbitration (Scotland) Act 2010 seeks to make it a seat of international arbitration.

While family actions seem to be in a category of their own (the Court of Session will continue to have concurrent jurisdiction), and personal injury actions will have a bespoke court, commercial actions are not given any prominence in the draft bill.

The effect of raising the jurisdiction limit to ￡150,000 should not be underestimated. I accept that the limit should be increased, but it will remove much business from the Court of Session, including actions which the commercial court has become very adept at dealing with. Some construction adjudication enforcement actions, for example, fall below that threshold, but they have their own complex of case law, with which the judges are familiar.

If I had my way, Scotland would be split into three large regions for commercial actions, served from Edinburgh, Glasgow and Aberdeen Sheriff Courts, each with one or more dedicated commercial sheriffs.

Whilst the draft bill does envisage the creation of designated specialist sheriffs, the drivers for such designation will be volume of business in any particular court. Repossession and bankruptcy cases in the central belt spring to mind. There are many of these cases taking up court time, but the legal issues tend to be relatively straightforward, and rather than specialist sheriffs, it would be more efficient to put in place special rules to speed up the process.

The same cannot be said of commercial actions, which often turn on complex contractual analysis, expert evidence, issues of negligence, consequential loss, insolvency etc.

For the rules themselves, I suggest:

• adverse cost consequences for parties who fail to ventilate their case properly before litigating;
• all case management conferences and motions to be conducted by prearranged conference call;
• all documents and productions to be exchanged by email (including productions);
• all motions, and opposition, intimated by email;
• no hearing necessary if parties are agreed that a CMC or any subsequent procedural hearing should be continued;
• sheriffs to be able to direct the lodging of witness statements on specific issues;
• independent experts who take opposing views to take the witness stand contemporaneously rather than sequentially – i.e. “hot tubbing”;
• encouraging the taking of evidence by video link.

Changes to the English court system come into force on 1 April under part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The English court system for handling commercial actions is very sophisticated. The reforms are designed to make litigation more efficient and less costly. As well as encouraging “hot tubbing”, they provide for details and estimated costs of expert evidence being put to the court in advance, and a proportionality test being applied to costs, with parties providing estimates at various stages and the courts undertaking a new role in approving budgets and assessing whether estimated costs fall within the “reasonable and proportionate” range.

I believe every business in every part of Scotland (including of course foreign business) should have access to a commercial sheriff under a set of rules which allows for cases to progress at the speed modern businesses deserve.