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From Gill to Bill

15 April 13

Key aspects of the current civil court reform consultation on the draft bill to implement proposals from Lord Gill's review

by Nicholas Duffy

Tuesday 5 March saw the Scottish Civil Justice Council and Criminal Legal Assistance (Scotland) Act 2013 receive Royal Assent. It also marked the delivery of the first major piece of primary legislation in the Government’s implementation of Lord Gill’s Scottish Civil Courts Review (SCCR).

The 2013 Act establishes the Scottish Civil Justice Council, tasked with an overhaul of the rules of court to deliver the detail of a more efficient and responsive court system. However, in order to deliver the details of reform, the wider court structure and the hearing of cases in courts requires radical reform to match.

Accordingly, the Government launched its consultation on the biggest overhaul of the Scottish court system in a generation on 27 February 2013. Designed as a systemic reform, it aims to change what Lord Gill described as a structure that “remains much as it was in the late 19th century”. The consultation includes a draft Courts Reform (Scotland) Bill, which provides the detail of the practical implementation of the SCCR. The draft bill makes provision for major changes to the Scottish courts, with the following key changes.

Sheriff Courts (Scotland) Acts

The draft bill brings together the provisions of the somewhat dated Westminster Acts of 1907 and 1971 into a new, modern, Act of the Scottish Parliament. In doing so, it aims for a retention of much of the effect, but updating and setting out the provisions in a more coherent and accessible way. Accordingly, organisational matters such as division of the country into sheriffdoms and sheriff court districts (ss 1 and 2), and judicial qualifications and disqualifications (ss 15 and 16) remain, but are augmented with new provisions such as those on judicial specialisation (ss 33-36).

Sheriff court exclusive competence

Section 38 will reduce Court of Session caseload by providing that only the sheriff court will be able to hear proceedings of value £150,000 or below. The sheriff court will have what is to be known as “exclusive competence” over such cases, with calculation of “value” subject to rules of court (s 38(7)). Generally, where the Court of Session considers the value of any order in proceedings raised there to be less than £150,000, it will be obliged (s 82) to remit the case to the sheriff, unless there are special reasons not to do so.

Recognising that value of claim does not always reflect legal complexity, the draft bill makes no proposal on limiting an advocate’s appearance rights in the sheriff court and, as is the case at the moment, sanction for the employment of counsel will remain a decision for the sheriff hearing the case. Further, remit of a case of value below £150,000 by the sheriff court to the Court of Session is permitted in exceptional circumstances, and provided the latter court is satisfied that there is special cause (s 81), the draft bill leaves the operation of this test to the court.

Specialist personal injury court

The draft bill allows for the designation of a specified sheriff court, with Scotland-wide jurisdiction for a particular type of case (s 40), the intention being that such a court will be set up for personal injury cases. It re-establishes the option of civil trial by jury in such a court (s 61). Paragraph 66 of the explanatory notes to the draft bill sets out that the current policy is to designate Edinburgh Sheriff Court with Scotland-wide jurisdiction over PI actions. Equipped with specialist sheriffs (ss 33-36), the court will become a centre of excellence, dealing with the transfer of PI business to sheriff court level in light of the new exclusive competence.

Designating Edinburgh will not give it exclusive jurisdiction; litigants will therefore be able to choose, as they presently can, between their local court and a centralised specialist PI court, but now with that specialism available at a proportionate cost and level in the court system.

Summary sheriffs

The draft bill establishes “summary sheriffs” (s 5), a new judicial office with jurisdiction limited to concurrent jurisdiction with sheriffs over summary criminal cases (s 43) and certain civil cases (s 42 and sched 1). Drawn from the ranks of experienced qualified practitioners (s 15), the purpose of the new tier is twofold: first to deal with the more legally straightforward types of sheriff court cases, but also those cases which may typically merit a less adversarial and more interventionist and/or problem-solving approach.

It is important to note, however, that remit to the sheriff will always be available, and the sheriff principal retains responsibility for the efficient disposal of business in the sheriffdom, including the division of work between different judicial officers (s 26), ensuring that cases are managed appropriately in accordance with their particular circumstances. Stipendiary magistrates are abolished, with full-time stipendiary magistrates appointed as summary sheriffs (s 94) and all summary sheriffs able to sit in the JP court (ss 43 and 95). The draft bill abolishes summary cause procedure (including small claims), re-enacting it as “simple procedure” dealing with claims not exceeding £5,000 (ss 70-78).

Sheriff appeal court

The draft bill establishes a sheriff appeal court (s 45), replacing the appellate role currently carried out by the sheriff principal in civil cases (ss 46, 88 and 89) and dealing with all summary criminal appeal cases. Onward appeal to the Court of Session (s 91) and the High Court (consultation paper, para 101) will be available if conditions are met. The decision of the sheriff appeal court will be binding in all sheriff and JP courts (s 47).

The judiciary of the new court will consist of appeal sheriffs, who will be the existing sheriffs principal (s 48) and sheriffs of at least five years’ experience, chosen to be appeal sheriffs by the Lord President (s 49). The Lord President will select from the sheriffs principal a President of the court, who will be responsible for the efficient disposal of business, where the court will sit, and the number of sittings of the court (ss 54 and 55). The court will be able to sit simultaneously in different geographical locations, hearing different cases. The quorum of the bench for particular types of case will be determined by court rules (s 86(2)(o)).

New judicial review procedure

The draft bill (s 84) inserts new sections into the Court of Session Act 1988. It provides that judicial review proceedings must be raised within three months of the date on which the grounds of the judicial review occurred, but allows the court to waive such a limit if it considers it equitable (new s 27A). The applicant must have leave from the court prior to the judicial review proceeding, such leave to be granted only if the applicant can demonstrate sufficient interest in the subject matter of the application and that the application has a real prospect of success (new s 27B). Leave may be conditional and a decision to refuse leave or grant conditional leave is subject to review through oral hearing by the court (new s 27C), with an appeal to the Inner House (new s 27D).

Modernisation of procedure

The draft bill provides revised enabling powers for the Court of Session in making rules of court for both the Court of Session and sheriff court (ss 85 and 86). A key part of the reform, this recognises that many SCCR proposals relate to better practice and procedure. It aims to widen and generalise the enabling powers, facilitating rules which empower courts to deliver reform and better case management in their day-to-day operations.

The consultation proposals will result in large scale changes to the Scottish court system, and the Government is keen to involve the legal profession and wider society in contributing to the debate on that change. The consultation is open until 24 May 2013, and is available together with the draft bill at www.scotland.gov.uk/Publications/2013/02/5302

Nicholas Duffy is a solicitor in the Scottish Government Legal Directorate, Constitutional and Civil Law Division

 

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