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Gill moves a step closer

13 December 10

The Society's Civil Justice Committee's response to the Gill review and why it differs from some proposals while offering broad support

by Kim Leslie

Lord Gill’s review of Scotland’s civil court system has received widespread praise. Rightly so – his comprehensive analysis identified a number of important structural weaknesses and the recommendations contained in last year’s report have the potential to bring about radical reform in the interests of practitioners and the public.

The Society’s Civil Justice Committee considered Lord Gill’s report in detail, producing 31 of its own recommendations in a submission to the Scottish Government last month. The committee supported the broad thrust of the review’s conclusions, agreeing that they are likely to lead to a vast improvement in the delivery of civil justice in Scotland. However, the views of the review team and the committee also differed in a number of areas.

Crucially, the committee’s overarching recommendation was to separate civil and criminal business in the sheriff court. Also, while a national sheriff appeal court – with a bench of three sheriffs and chaired by a sheriff principal – would be proportionate in summary criminal matters, the committee did not favour establishing such a court for civil cases. The view of the majority of committee members was that there should be a presumption that an appeal from an individual sheriff should go to the sheriff principal, though some supported direct appeals to the Court of Session. Overall, the committee concluded that the current system of appeals to the sheriff principal was effective.

Like Lord Gill’s review team, the Civil Justice Committee backed increasing the threshold for civil cases in the Court of Session, while disagreeing on how far it should be raised. After considering the opinion of a large number of personal injury lawyers from firms that represent both pursuers and defenders, the committee recommended that the current limit of £5,000 below which an action has to be raised in the sheriff court should be raised to between £20,000 and £50,000. This is far less radical than the £150,000 recommended in the Gill report, yet would make a significant difference to the number of cases going before the Court of Session. The Scottish Government, meanwhile, has said it is minded to accept the proposed limit of £150,000 for the new privative jurisdiction of the sheriff court, subject to further modelling work.

Cost and funding are major factors for parties deciding whether, and where, to litigate. If the Government is keen to promote behavioural change – which the committee supported – consideration should be given to the resurrection of a civil costs review and, more significantly, an increase in the proportion of recoverable expenses in the sheriff court.

The review team highlighted the importance of not viewing the threshold recommendation in isolation, insisting that it should go hand in hand with the introduction of specialist sheriffs and a system of active case management. The Society’s committee agreed that specialisation would bring major benefits, particularly in administrative, environmental and planning law as well as family, commercial and personal injury cases. However, the committee was not persuaded of the benefits of setting up a national personal injury court in Edinburgh or any other single location, favouring specialisation in each sheriffdom. If the new privative jurisdiction of the sheriff court was set between £20,000 and £50,000, and appropriate specialists were employed, there would be no need for a national court.

While endorsing the review’s recommendation that a third tier of judges should be created, the committee concluded that all personal injury cases, regardless of their value, should be excluded from the jurisdiction of the new district judge so that they benefit from the specialist case flow management system in the sheriff court.

The Civil Justice Committee took a different view from Gill on a number of other issues – for instance, going further on the benefits of IT, believing that a six-month timescale for bringing petitions for judicial review was more practical than three months and disagreeing that judicial discretion should be used to determine whether a multi-party litigation is opt-in or opt-out – but remains supportive of the review process. We look forward to working with the Government to bring in an ambitious programme of reform.

Kim Leslie is convener of the Civil Justice Committee

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