Scottish court reform: biggest modernisation of Scotland's courts for generations

This week has brought the biggest modernisation of Scotland’s Courts for generations.

The Court Reform (Scotland) Act 2014 introduces a substantial number of significant changes to the civil courts and civil procedure in Scotland.

The aim of the reforms is to ensure that cases are heard by the right courts at the right cost and to enhance the capability of the Court of Session to function as an effective forum for the resolution of high value commercial and public litigation.

Summary of Changes

• A new exclusive competence of £100,000 will be introduced in all Sheriff Courts resulting in a shift of business from the Court of Session to the Sheriff Court
• The conferring of an all-Scotland jurisdiction on Edinburgh Sheriff Court in personal injuries cases establishing a National Personal Injury Court.
• The introduction of a three-month time limit and a requirement for permission in judicial reviews;
• A requirement for permission to appeal to the UK Supreme Court.

What does this mean for you?

An efficient Court of Session

One of the driving forces of the changes is to free up judicial capacity in the Court of Session.

As those who have previously litigated in Scotland’s highest civil court will know, the volume of business within that Court can restrict the ability to progress cases to a full trial quickly. This can impact upon both costs and commercial considerations for our clients. Indeed, the most common comment that we receive from those more used to litigation in the courts of England and Wales has been how frustratingly slow litigating in the Court of Session could be.

The new reforms will see a large swathe of business being taken out of the Court of Session and moved to other fora. Claims under £100,000 will, going forward, be subject to the exclusive competence of the Sheriff Courts. It is also anticipated that around 80% of Personal Injury cases in the Court of Session will move to the Sheriff Court, including to the new all-Scotland Personal Injury Sheriff Court

The hope is that, by restricting the types of business which can be raised in the Court of Session, but not reducing the judicial resource in that court, the increased capacity of the Court of Session to deal with more deserving cases will allow for more expeditious and cost effective case management.

Personal Injury Specialists

The creation of the All-Scotland Personal Injury Sheriff Court in Edinburgh, and the creation of streamlined procedure for those electing to use it, aims to replicate the success of recent Court of Session changes in this sector.

Parties will now have the choice of litigating in their local sheriff courts as before or, alternatively, to litigate in the new Court, with Sheriffs specialising in personal injury matters and equipped with robust case management powers, streamlined motion procedures and innovative procedural powers.

This choice will be of the utmost importance going forward, with the removal from the Court of Session of all business with a value of less than £100,000 meaning that around 80% of PI claims will now be within the exclusive competence of the Sheriff Courts.

Another factor to consider is costs. Unlike in the Court of Session, there will not be the automatic sanction of counsel’s fees. A successful party, in addition to asking the court to award the expenses, will need to persuade the judge that it was appropriate to instruct counsel. This may a rethink of the litigation strategies of both your clients and your competitors.

Judicial Review Changes

The key feature of the new rules on Judicial Review brings this area in line with similar actions in England and Wales. For those used to bringing Judicial Review south of the border, a three month window for raising proceedings will not be unusual. This also provides a greater degree of certainty in bringing actions for Judicial Review, with a definitive timescale for raising proceedings replacing the uncertain concept of mora, taciturnity and acquiescence.

Further, the requirement for permission prior to raising will sift out those claims which ought not to be brought in the first place, ensuring that only those claims which merit consideration are heard.

It will be interesting to note any patterns that emerge in the coming months in relation to Judicial Review applications, particularly any judicial comments upon seeking permission. One of the key considerations for the reforms appears to have been a belief that there will be an increase in public and public interest litigation in the future, and that such an increase should be encouraged. It will also be interesting to see whether such a belief is borne out.

No Automatic Right of Appeal to the UK Supreme Court

An unsuccessful party will now require the permission of the Court of Session to appeal a decision to the UK Supreme Court. It has long been a source of concern on the part of the Supreme Court Justices that Scotland has been out of step with the rest of the United Kingdom in having a much less restricted right of appeal to the UK’s highest court, and the introduction of the requirement for permission will remove that perceived discrepancy.

Get in touch

As always, if you have any questions, please do not hesitate to contact our Dispute Resolution team.

• Sandy Hastie   |   0131 247 2503