A round up of recent legislative activity in Scotland and looking forward to 2015
As the focus turns away from the referendum it is clear that Scotland is going to be a place of continuing change, with the most important change likely to be the much needed reform of the civil court system, which should get into full flow in 2015.
Court Reform (Scotland) Bill
The highly anticipated legislation to reform Scotland’s civil courts system received Royal Assent on 11th November 2014.
The Courts Reform (Scotland) Act 2014, which broadly implements recommendations made by Lord Gill as part of the Scottish Civil Courts Review, will radically change the procedures and processes to improve the structure and operation of Scotland’s courts.
At its heart, the Act provides for the redistribution of civil business from the Court of Session to the Sheriff Courts, with the increase from £5,000-£100,000 of the privative jurisdiction of the Sheriff Court. Given that the majority of civil cases in Scotland have a value of less than £100,000 this will in one stroke greatly increase the workload of the Sheriff Courts and provide a real challenge to the Courts’ infrastructure.
The creation of the new all Scotland personal injury court in Edinburgh will see a real operational change as 80% of all civil court cases involve personal injury. It is hoped that the specialist sheriffs who will sit in this court will improve the quality of justice delivered and mean an end to high value and complex cases being heard by sheriffs and judges with little or no experience.
The Act will create new judicial offices of summary sheriff and appeal sheriff and the creation of a Sheriff Appeal Court. The Lord President has recently confirmed his intention to appoint Sheriff Principal Mhairi Stephen as the President of the new Sheriff Appeal Court.
The Lord President, Lord Gill 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."
In reality it should mean cheaper and quicker settlements in cases that go to court. More cases will undoubtedly be heard in the Sheriff Courts. Pursuers who use an Advocate in the Sheriff Court will have to justify their use based on the complexity of the case and equality of arms. This in turn is likely to mean that the automatic use of an Advocate, which occurs in the Court of Session, will not be as commonplace.
The Scottish Government consultation "Civil law of Damages: Issues in Personal Injury" ran from 15th December 2012 to 15 March 2013. As a result of this root and branch review a Damages Bill was announced as one of the legislative priorities of the Scottish Government's Programme for 2013-2014. The Damages Bill will amend the Prescription and Limitation (Scotland) Act 1973 to increase the limitation period for raising an action for damages for personal injury from 3 years to 5 years. The Act will also provide guidance on a list of factors for the court to consider when exercising its discretion under the Act, whether to allow an action to proceed out with the limitation period.
The intention is to address practical difficulties inherent in pursuing disease cases where a higher degree of investigatory work needs to be done. While there was general consensus that it was in the public interest for disputes between parties to be concluded as quickly as possible it appears that the majority of respondents were against raising the limitation period beyond 3 years.
The government, however, intends to press ahead and if it does so this may discourage pre-mature litigation. We anticipate that there will be numerous cases currently in the court system that are sisted for investigatory work and which are likely to be stymying the progress of other cases and this reform is likely to reduce this problem in the future.
Progress of this Bill appears to have stalled after the consultation stage. Not surprisingly there have been a few other items on the government's agenda recently and this has fallen by the way side. We have been advised that there is no update on the bill at present but it is likely it will be introduced in the New Year.
Prompted by the recommendations made in Lord Gill's report, the Personal Injury Committee (PIC) of the Scottish Civil Justice Council (SCJC) concluded an information gathering exercise on the possible introduction of compulsory pre-action protocols. This was prompted by the fact the Courts Reform (Scotland) Bill proposes to give the Court of Session the power to introduce compulsory pre-action protocols.
Questions were set by the PIC and 24 detailed responses were received, 10 reflecting the views of insurers and their representative organisations.
You can now view the Information Gathering Exercise on Pre-Action Protocols: Report on Responses by the Scottish Civil Justice Council.
The majority of insurers appear to agree that changes are needed to the current protocols and that there should be sanctions against a party failing to comply. There was also support for the introduction of a portal, similar to the Ministry of Justice Portal for personal injury cases in England and Wales.
Recommendations will now be made to the SCJC and it is anticipated that, if changes are to be made it will be sooner rather than later to fit in with the other court reforms being introduced.
For further information please contact Caroline Coyle, Associate, Professional Support Lawyer, on +44 (0)7712 355 907.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.