Sheriff court changes do not prejudice access to justice: Stephen

Fears that the transfer of cases from the Court of Session to the sheriff court under reforms to Scotland's civil courts will restrict access to justice have been dismissed by the designated head of the new Sheriff Appeal Court.

In a lecture in Edinburgh this week, Sheriff Principal Mhairi Stephen also described the claims that the sheriff court would be unable to cope with the removal to the sheriff court of most personal injury litigation as "ill-founded scaremongering".

Delivering the joint Society of Solicitors in the Supreme Courts, Society of Solicitor Advocates and Scottish Young Lawyers' Association Annual Lecture at the Court of Session, she said that solicitors were well placed to both anticipate and participate in the process of reforming the way legal services are delivered to clients in the justice system of the future. "More than that, the court reform programme presents great opportunities for solicitors themselves and their personal career development."

Expanding on the need for reform, Sheriff Principal Stephen said it was not a good use of the time of a sheriff qualified and appointed to deal with serious criminal and civil cases, to be dealing with small claims or routine summary criminal matters. The "almost unstoppable volume of criminal business (both solemn and summary)", which often caused civil cases to be pushed aside, was another important feature, as was the unfettered right of appeal, often exercised for low value claims – and the need to recognise "national fiscal realities". "Justice is not threatened if in a criminal trial a fair timetable is imposed or in a civil proof the parties are restricted to the points at issue", she stated.

The sheriff principal went on to welcome the new summary sheriff system which, she noted, "offers a real opportunity for a more diverse bench with opportunities for salaried part-time work which is less easy to factor into the sheriffs' jurisdiction... It may be more attractive, for example, to women entering the judiciary". It would be an important office in its own right, and not simply the entry level for the judiciary.

Regarding the national personal injury court, she expressed her preference for "a larger pool of personal injury sheriffs working together to apply rules consistently and preside over proofs and jury trials", as opposed to the two full time sheriffs said to be sufficient to handle most of the business. The new court would replicate the economies of scale achieved in the Court of Session; it would apply the riules and develop the law; expenses should be lower; and "In this context the concerns about the sheriff court being unable to cope and the imminent train wreck is simply ill-founded scaremongering."

The objection regarding access to justice, she continued, "conflates choice of forum with the impact on instruction of counsel". Access to justice was inextricably linked with cost, and the risk of incurring cost was a significant disincentive to litigation; and while there was no automatic sanction for counsel in the sheriff court, the sheriff usually granted sanction where the case required it. She supported Sheriff Principal Taylor's proposal that reasonableness and the equality of arms should be relevant factors.

Dealing finally with the Sheriff Appeal Court, Sheriff Principal Stephen said few cases were appealed from the sheriff principal to the Inner House, and most of there were by party litigants seeking "another bite of the cherry or hoping that the next bench will be more sympathetic" – usually raising no issue of law and leading to unnecessary delay and expense for all concerned.

She concluded by expressing optimism for the future, through the combined expertise of the professionals involved – and their co-operation, as already evidenced in the work of the Scottish Civil Justice Council, which "has already achieved more than could ever have been expected at this stage". "You are skilful and resourceful people who will recognise the opportunities which the reforms provide", was her final message to her audience.