The Scottish Government has published a Consultation Paper on the draft Courts Reform (Scotland) Bill (the Bill). If enacted this Bill would see the biggest changes to the Scottish civil courts in over one hundred years.
Background
"Minor modifications to the status quo are no longer an option"
So said Lord Gill in the introduction to the Scottish Civil Courts Review. The review, which was led by Lord Gill, made 206 recommendations for reform, the majority of which are included in the Scottish Civil Justice Council and Criminal Legal Assitance Bill (the Bill).
It is widely accepted that measures to make the courts more cost-efficient and accessible and which encourage quicker resolution of disputes while maintaining the high standard of judicial decisions are to be welcomed. However, response to the draft bill has been mixed, with concerns expressed about some of the proposals by the Law Society of Scotland and the Faculty of Advocates amongst others.
The Key Proposals
1.
| Raising the exclusive limit of the sheriff court to £150,000
Perhaps the most controversial proposal is to move all civil business where the sum sued for is under £150,000 to the Sheriff Court. The intention is that only the most complex and important cases are dealt with in the Court of Session; most routine litigation should be conducted in the Sheriff courts. While there seems to be broad support for increasing the current threshold (£5,000), the Law Society of Scotland has indicated that it would prefer that the limit is no more than £50,000. This would be in line with the equivalent position in England.
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2.
| A specialist personal injury court
The Scottish Government proposes a specialist court, with a Scotland-wide jurisdiction, to deal with personal injury actions. Parties would still be entitled to raise personal injury cases in their local sheriff court. However, cases where a civil jury trial is sought will require to be raised in the specialist court.
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3.
| Reform of judicial review procedure
It is not proposed that the scope of the Court of Session's supervisory jurisdiction be altered, and the Scottish Government notes that the law on standing was recently widened by the Supreme Court decision in the Axa case. However, the Scottish Government proposes introducing a time limit of 3 months for judicial review claims to be lodged, although the Court of Session will have discretion to permit petitions outwith that period. The bill also proposes a "leave to appeal" stage to sift out applications with no merit.
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4.
| A new judicial tier of "Summary Sheriff"
The "Summary Sheriff" would hear both civil and criminal cases. This would free up Sheriffs to concentrate on more serious or complex cases. The Summary Sheriffs would hear cases with a value of £5,000 or less.
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5.
| A new Sheriff Appeal Court
The new Sheriff Appeal Court, with national jurisdiction, would be competent to hear all civil appeals from sheriffs and summary sheriffs and all summary procedure criminal appeals. Members of the Sheriff Appeal Court would comprise existing Sheriffs Principal and a number of experienced sheriffs, and its decisions would be binding on lower courts.
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6.
| Other reforms
The consultation either proposes reform or seeks views on a range of other matters regarded as promoting the efficiency of court procedures, including: replacing existing court rule-making powers with a more general power to regulate procedural matters through rules of court; the possibility of a single Court of Session judge having power to consider the grounds of a statutory appeal or motion; abolishing the current distinction between ordinary and petition procedure in the Court of Session such that all actions would have a standard initial procedure; introducing a new procedure in relation to vexatious litigants; and whether an interdict granted in a sheriff court should be enforceable throughout Scotland.
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Further information
Responses to the consultation are invited by 24 May 2013.
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