Courts: why the reforms add up

A “train wreck”, or “necessary measures to facilitate access to justice for ordinary people”? The article “Court reform: does it add up?” (Journal, April 2014, 10) highlighted the wide divergence of opinion among commentators on the Courts Reform (Scotland) Bill.

Obviously, I welcome the support that the bill has received from consumer groups, the Federation of Small Businesses and certain parts of the solicitors’ profession. Indeed, I welcome the fact that even those who have criticised some aspects have broadly welcomed the reforms as a whole. I would like to take this opportunity to address some of the concerns raised.

It is worth remembering that Lord Gill said in the Scottish Civil Courts Review (SCCR), which took two years to consider carefully the proposed reforms, that the Scottish civil courts provide a service which is “slow, inefficient and expensive”. He added: “We consider that minor modifications to the status quo are no longer an option. The court system has to be reformed both structurally and functionally.” So a “seismic change” is indeed required.

“Creaking at the seams”?

I note that the claim was made again that the sheriff courts will not be able to cope with the number of cases that will hit them as a result of the change to the exclusive competence (privative limit), particularly at a time when Scottish Court Service (SCS) is closing 10 sheriff courts.

However, the volume of business carried out in these 10 courts is only about 5% of the total across Scotland. SCS is confident that the transferred business can be assimilated without difficulty in a smaller number of better-equipped courts, particularly because the overall level of sheriff court civil actions fell by 36% between 2008-09 and 2011-12. It is also worth noting that there will be no reduction in shrieval or staff resource due to the closures.

Bear in mind too that the purpose of the bill is to establish the framework, in conjunction with other aspects of the Making Justice Work programme, within which the sheriff courts will be transformed in their operation. We should consider how the sheriff courts will be in the future, not as they are at present.

It is also simply not the case that the sheriff courts will be swamped by cases excluded from the Court of Session. There will be around 2,700 such cases each year – this will add only 3% to the 80,502 civil cases in the sheriff court in 2011-12.

Of those 2,700 cases, by far the majority are likely to be personal injury cases, which are expected to be dealt with centrally at the national personal injury court, rather than being redistributed across all sheriff courts. Of those, the vast majority will settle and not require judicial determination.

Some clarification is also required in relation to the other resource implications.

SCS will need to make minor updates to two IT systems to support creation of the new judicial tier. These modifications have been estimated at up to £10,000 for each system. Separate to the bill, SCS is also currently undertaking a multi-million pound investment into upgrading its IT systems.

The policy of replacing retiring sheriffs with summary sheriffs where appropriate means that training costs will be met from current budgets. The Judicial Institute for Scotland stands ready to undertake any specialist training that may be required for the specialisms determined by the Lord President.

Right to choose

The SCCR said: “It is for the legislature to decide which level of adjudication and which modes of procedure are proportionate and appropriate for the type of dispute in question.” That is what the bill seeks to do – to ensure that cases are raised at an appropriate level in the court structure.

It is almost invariably not the litigant who makes the choice of forum, but his or her legal adviser, and it is well known that some firms of solicitors have a business model predicated on raising even low-value claims in the Court of Session. It is this practice that leads to disproportionate costs, exceeding the value of the claim to the client.

As to the exclusive competence of the sheriff court, the reason the new level of £150,000 was chosen was that it has to be high because the sum sued for is, on average, three times the sum awarded or settled. The alternative exclusive competence figures suggested by the Law Society of Scotland and others are based on the latter figure, which accounts for the divergence.

The suggestion that highly trained sheriffs, many of whom are QCs, are incapable of dealing with cases up to £150,000 is risible. Many cases far in excess of that figure are already raised in the sheriff court. If low-value cases turn out to have greater complexities than first appear, they may be remitted to the Court of Session under the bill.

As to commercial procedures, the commercial court in the Court of Session is undoubtedly “a tremendous resource”, but then so is the highly successful – and popular – commercial court in Glasgow Sheriff Court, and all sheriffdoms have commercial court procedures. The Federation of Small Businesses has welcomed this increase to the limit.

Reparation issues

Recently published civil court statistics show that personal injury (PI) cases continue to account for four-fifths of cases raised in the Court of Session General Department. Many could be raised at lower cost in the proposed new personal injury sheriff court.

As only 2% of Court of Session PI cases are actually judicially determined, the number that benefit from the ability of that court to settle points of law is limited indeed.

The Government welcomes the fact that many PI lawyers – both pursuers and defenders – are relaxed about the transfer of cases to the new specialist court.

As to sanction for counsel, Sheriff Principal Taylor’s Review of the Expenses and Funding of Civil Litigation in Scotland recommended that the test currently applied in the sheriff court, namely, whether the employment of counsel is appropriate by reason of circumstances of difficulty or complexity, or the importance or value of the claim, should remain, with a test of reasonableness also being applied. He also considered that, when deciding a motion for sanction, the court should have regard, among other matters, to the resources deployed by the party opposing the motion in order that no party gains an undue advantage by virtue of the resources available to them.

The latter point addresses concerns that insurers habitually employ counsel – if they do, the sheriff will be able to take this into account.

When giving evidence to the Justice Committee, Sheriff Principal Taylor indicated that applications for sanction for counsel were rarely refused, and it was hard to envisage it being refused if the other party was represented by counsel. He also indicated that his recommendation that equality of arms should form part of the test for sanction represented his understanding of current practice.

Access to justice does not in any case necessarily mean access to counsel. It means having your case heard in an appropriate court before an appropriate judge, with access to appropriate legal representation. Many experienced solicitors are perfectly capable of conducting PI cases in the sheriff court before specialist sheriffs.

Efficient system

Sheriff Principal Taylor commented that “actions raised in the sheriff court are very often conducted by solicitors in a most efficient and competent manner. I do not accept the argument advanced by some respondents [to the Review’s consultation] that, by definition, all personal injury claims are of such importance and value to the pursuer that counsel requires to be instructed in every case”. He went on to state that “it would be disproportionate if sanction for the employment of counsel was automatically granted in such actions”.

The future rules on sanction for counsel are for the Lord President, the Court of Session and the Scottish Civil Justice Council to consider, rather than the bill. Citizens Advice Scotland has very properly pointed out that “if counsel function in the sheriff court in the same way that they function in the Court of Session just now… it undermines all the changes that aim for proportionality in the justice system”.

We are facing a situation where the number of civil cases being heard by our sheriff courts is reducing dramatically, yet the number being heard in the Court of Session has remained constant. We have a responsibility to make our court system as effective and efficient as it can be; the bill is designed to do exactly that and ensure the right cases are heard at the right time, in the right courts and at the right cost.

As Lord Gill said in his speech to the Law Society of Scotland AGM: “The increase in the privative jurisdiction and, in time, the introduction of the specialist personal injury court should ensure that cases find their appropriate place in the court system, expenses will be lower for the parties, cases will be dealt with expeditiously, and specialist sheriffs in partnership with the profession will develop a body of specialist and authoritative case law.”

As highlighted by Lord Gill in his evidence to the Justice Committee, these changes are 50 years overdue. We must take action now to ensure that our civil justice system becomes more accessible, affordable and efficient for those who need to resolve civil disputes.

That is the vision for the future of the courts in Scotland, and it is one I hope the profession will embrace.