Changes on the horizon

On 11 November 2014 the Courts (Reform) Scotland Bill received Royal Assent and the Scottish legal system moved one step closer to its biggest reformation since devolution.

The Bill has been a hot topic of discussion ever since the Gill Review was published in 2009 and has been progressing through parliament following its introduction in February of this year.

It embodies the reform of the civil courts and the driving factor behind it was principally the need to ensure the court system was fit to cope with the increase in litigation and address general concerns that it was slow, inefficient and expensive.

While it is generally accepted among the legal profession that the Scottish court system plays host to some unique, and arguably outdated, traditions, the proposals to reform and remove some of these were met with more varied reactions. Changes were targeted at increasing access to justice and maximising efficiency both in terms of time scales and utilising resources.

Right cases, right courts

One of the main concerns flagged up by the Gill Review was that many simple or low value cases were being heard by judicial officers who were overqualified. This made the entire system inefficient and unnecessarily costly. The Bill aims to tackle this in multiple ways. It raises the exclusive competence of the sheriff court to £100,000 and introduces new tiers to the civil justice system in the form of summary sheriffs and a Sheriff Appeal Court.

The increase in the privative jurisdiction of the sheriff court to £100,000 is one of the more contentious changes in the Bill. It will result in a downward shift of business from the Court of Session to the sheriff court.

Greater pressure on the sheriff court will be alleviated by the introduction of new summary sheriffs who will hear cases up to the value of £5,000. This will, in effect, create a new judicial tier for the Scottish civil system, which has traditionally only operated on two levels: the sheriff court and the Court of Session. The policy driving this restructure is a desire to ensure cases are heard in the most appropriate forum for their value and level of difficulty.

A new right of appeal from the sheriff court, both for criminal and civil matters, is also being introduced in the form of the Sheriff Appeal Court. Presently, almost two-thirds of civil appeals from the sheriff court are made directly to the Court of Session. This results in increased costs and often extensive delays.

Going forward, the Sheriff Appeal Court will be the court of first instance for civil appeals. This will enable more cost-effective disposals, yet retain the power to remit cases to the Court of Session if required.

Another area flagged by the review was an increasing need for specialisation within the court system. Specialisation is not a new concept to the Scottish legal system, which already operates a system of specialised commercial courts.

In addition to these, the Bill will introduce a new personal injury court that aims to alleviate the pressure on the Court of Session, currently the forum for a vast number of personal injury cases. It will also increase the efficiency with which these cases can be handled.

Moving forward

Lord Gill, the lord president, said: “These reforms will safeguard the integrity of Scots law by creating an efficient court structure. Every case will be heard by the appropriate court. The system will be accessible and cost-effective for the litigant.” While feedback for the proposed reforms has generally been positive, as is often the case for significant changes, there have been a number of mixed reactions.

The Faculty of Advocates, for example, has expressed particular concern that the increase in the exclusive competence of the sheriff court would restrict the choice of forums currently available to litigants and arguably impede access to justice.

The changes are due to be implemented over the next few years and will certainly revolutionise the way that cases are handled within the justice system. All moves to adapt to the needs of a modern legal age are to be welcomed and small adaptations, such as the accepted use of electronic tablets in courts, are already visible.

The Courts Reform (Scotland) Bill puts in place the tools to enable the Scottish legal system to overthrow its costly and inefficient reputation. Only time will tell if it is able to embrace this opportunity and succeed in doing so. SJ

Sarah Ainslie is a solicitor at TLT