A new court rises

Reform! It is a time of great change in the Scottish legal profession. Progress is everywhere...

Pop culture and the legal profession rarely collide, but in addition to the long awaited new instalment of the Star Wars franchise, we also stand at the threshold of monumental developments in the personal injury sphere: 22 September 2015 heralds the launch of a new court and a raft of procedural amendments.

Focused centre

In the new Sheriff Personal Injury Court it will be competent to bring actions for damages for personal injuries, or death from personal injuries, which seek in excess of £5,000. It will also be competent to bring employer liability claims for £1,000 or above, and to remit such claims from other sheriff courts even if worth less than £1,000. In addition, the All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015 provides that sheriffs sitting in this new court will have jurisdiction extending territorially throughout the whole of Scotland.

Under the Courts Reform (Scotland) Act 2014, the sheriff courts’ privative jurisdiction will be extended, giving them exclusive competence to deal with actions in which up to £100,000 is sought. Therefore, the vast majority of personal injury actions will fall outwith the Court of Session’s jurisdiction, relieving it of a glut of lower value actions. However, actions relating to catastrophic injuries or mesothelioma are likely to remain in the Court of Session.

Procedural developments

The statutory instrument setting out the new rules has the snappy title of Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No 2) (Personal Injury and Remits) 2015. Principally, the amendments relate to the Ordinary Cause Rules which will, going forward, more closely mirror Chapter 43 procedure in Court of Session actions. There are too many amendments to enumerate here, but a few deserve special mention.

Pre-proof conferences will be re-branded “pre-trial meetings” to reflect Court of Session procedure. Although provision is made for these to take place either in person or by videoconference, the intention is to formalise current practice in which the conferences often occur by telephone. This is with a view to encouraging agents to better prepare; minds should be focused on settling the action or, so far as possible, agreeing matters which are not in dispute. It is likely that these meetings will become the new “door of the court”, as they now are in Court of Session personal injury actions.

In addition, a distinction is to be made between a sheriff’s all-Scotland and his/her local jurisdiction. Where a Chapter 36 personal injury action is raised in Edinburgh Sheriff Court, the initial writ must state in which jurisdiction the proceedings are for determination. This distinction will be of specific relevance to jury trials, which are being revived in sheriff courts but with their availability restricted to the Sheriff Personal Injury Court.

Efficiency gains

Employers and insurers will be pleased to know that a case management procedure is being introduced in clinical negligence actions, actions for which the personal injury procedure has been disapplied, and more complex personal injury actions where the sheriff agrees the action would benefit from this. The intention is that the case management will be similar to that of Chapter 42A of the Rules of the Court of Session.

Importantly, actions raised before 22 September 2015 will continue to be governed by the current rules. However, there are instances when the sheriff may direct that the new rules apply to previously raised actions if there are issues of complexity which warrant the new case management procedure, or if every party to the action so agrees.

Finally, provision is also made for the introduction of e-motions within the Sheriff Personal Injury Court. It is intended that this will facilitate greater efficiency in the disposal of routine motions.

Call to specialism

A new sheriff court calls for a new breed of sheriff, and six sheriffs (Sheriffs Paul Arthurson QC, Peter Braid, Gordon Liddle, Kathrine Mackie, Kenneth McGowan, and Fiona Reith QC) have recently been named as the specialist sheriffs to sit in the new court. Parties and practitioners alike should welcome the introduction of specialist sheriffs as this will improve efficiency and consistency; with the change to the privative limit, it is hoped that the introduction of specialists should facilitate efficient and consistent handling of the increased caseload at sheriff court level.

There also is something to be expected of practitioners in this era of change; they will need to raise their game, both in terms of written pleadings and oral advocacy, in order to avoid complacency. From my own perspective, the reforms also offer sheriff court practitioners the exciting opportunity to deal personally with claims of significant value and to develop skilled advocacy in cases which have lately found their way to the Court of Session.

Hopes at the birth

In terms of future reform, the Scottish Civil Justice Council’s Personal Injury Committee continues to muse over a compulsory pre-action protocol in personal injury cases. However, it is likely that we will have to wait until the dust has settled with the new court; as part of the ongoing Rules Rewrite Project, the committee is looking to September 2016 as a potential date for introducing such a procedure. Looking further into the future, some predict we will move towards a paperless court.

Turning back to the immediate term, one question which is yet to be resolved is that of sanction for counsel. As before, there will be no automatic sanction for counsel in sheriff court actions, but there have been indications that applications for sanction will be considered favourably by sheriffs in employer’s liability cases. Only time will tell.

For now, though, the (new) hope is that the Sheriff Personal Injury Court will usher in the intended age of greater efficiency and that it will prosper as a centre of excellence in the delivery of civil justice.