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Sheriffdom of Scotland

17 August 15

Under the civil court reforms the Sheriff Appeal Court will hear most appeals, civil and criminal, from the sheriff court. Its President, Sheriff Principal Mhairi Stephen QC, told the Journal about the plans

by Peter Nicholson

While the civil court reforms caused much furore over exclusive jurisdiction limits and attendant access to justice issues, much less was heard over the far-reaching changes to sheriff court appeals which, on one view, will remove a significant aspect of litigation from local courts to a national body in Edinburgh.

One of the proposals of Lord Gill’s Scottish Civil Courts Review which has remained more or less intact was the creation of a national Sheriff Appeal Court, replacing appeals to the sheriff principal in civil cases and, by taking over all summary criminal appeals from the High Court, assuming for the first time an appellate criminal jurisdiction. Its members will be known as appeal sheriffs. As they initially include all the current sheriffs principal, supplemented by the recently retired Dunlop and Lockhart (and 10 newly designated appeal sheriffs), with single-judge local sittings at least in lower value civil appeals and all criminal hearings taking place in Edinburgh, what difference will solicitors notice in practice? Quite a lot, it would appear.

Appointed as the court’s first President is Mhairi Stephen, who also retains her position as Sheriff Principal of Lothian & Borders (Craig Scott of Glasgow & Strathkelvin is Vice President). The sheriff principal role as such will be far from redundant, she assures me: even in Glasgow and Edinburgh, where appeal business is quite significant, time spent on cases appealed is “probably no more than 40% of our overall work, because the management, the administration of justice and the courts, the requirement to attend meetings, is really a very significant part of the sheriff principal’s role”.

The review itself recognised the popularity of the sheriff principal appeal route, so why make the change? For one thing, it reported, the system was seen as anomalous, being an appeal from a single judge to a single judge; conflicts between decisions of different sheriffs principal could remain unresolved over many years; and the review was anxious to establish a vehicle capable of removing less important cases, civil and criminal, from the supreme courts. While some civil appeals will now go through a more formal procedure in Edinburgh than they would have before the sheriff principal, overall the aim is proportionality – that cases are dealt with at a level appropriate to the point or issue in dispute, one of the key principles of the review.

The same, but different

Dealing with the criminal side first, this can be set out quite simply: under s 118 of the Courts Reform (Scotland) Act 2014, the powers and jurisdiction of the High Court in appeals from the summary courts (apart from matters brought under the nobile officium) are simply transferred en bloc to the Sheriff Appeal Court. As envisaged by the review, appeals will continue to be administered centrally and heard in Edinburgh, by benches of two (for sentencing appeals) or three judges. “It simply replicates what is currently happening and what seems to be successful at this time,” Stephen comments.

She adds: “It is a feature that, when the review reported in 2009, there were considerable delays in Inner House and High Court appeals. These have largely been eradicated, but nevertheless there are still very compelling reasons why we need to have a different approach to summary cases, which will be dealt with by appeal sheriffs who are familiar with and close to summary procedure.”

For criminal cases, the court will be up to speed quite quickly, dealing with appeals lodged on or after 22 September. “There will be a slightly fallow period until appeals filter in to the new court, but the Sheriff Appeal Court will certainly aim to replicate the efficient and swift disposal of appeals that presently happens in the Court of Criminal Appeal, so I would imagine by the beginning of November there will be quite a number of appeals to be dealt with, together with miscellaneous business, applications and suchlike,” Stephen predicts.

The final word

Civil appeals will take a little longer to transfer to the new court, but the intention is that appeals marked from 1 January 2016 will be taken there. Part 5 of the 2014 Act, which contains the ground rules, restates a number of provisions with which practitioners will be familiar, including when appeal can be taken without leave (now known as “permission”), the effect of taking an appeal, and powers on disposal. While preserving specific appeal rights under other enactments, however, it significantly restricts the right of appeal to the Court of Session, which may be taken only with permission (of either court); this in turn can only be granted if the appeal would raise an important point of principle or practice, or for “some other compelling reason”.

Is it intended to be quite unusual to take a further appeal? “The statute sets down the parameters and I think it has to be accepted that one of the important drivers of this reform was to prevent the straight jump from the sheriff to the Inner House, and to have a fairly robust method of determining whether there should be an onward appeal, so we had better wait to see how that develops,” Stephen advises.

As local sheriff courts struggle with the clash between criminal and civil cases, how will business be organised in an appeal court dealing with both? “The model I envisage will be that the criminal court will sit on alternating weeks with the civil division. And once the civil division comes into being next year and a caseload develops, that’s when the appeal sheriffs will underpin more actively the business of the court and will sit along with the sheriffs principal.”

A marked difference will lie between the hearing of appeals in ordinary actions and causes brought under the new simple procedure, to be introduced later next year. The latter are likely still to be heard by a single appeal sheriff within the sheriffdom of origin – despite the review’s comment about appeals from one single judge to another, the Act envisages both single and multiple judge benches, and the President wishes the court to operate in a manner proportionate to the value of the cause. In contrast, “The norm for ordinary cause ‘grown-up’ appeals would be a triple bench. There will be certain categories of ordinary cause appeal that could be dealt with by a single appeal sheriff, of the reponing and default type, which probably don’t need the panoply of three appeal sheriffs to decide whether an action should be put back on track, and these are cases that I would also want dealt with expeditiously.”

Ordinary cause three-judge appeals will be held in Edinburgh. “There are good reasons for that,” Stephen tells me. “One practical reason – it’s actually quite difficult to find court accommodation which can take a triple bench in most sheriff courts.”

Further enhancements

An unusual feature of the Act is that it expressly defines the precedent status of Sheriff Appeal Court decisions: they are to bind any sheriff or justice of the peace, and also the Appeal Court itself unless a larger court is convened. “The review did have a concern about consistency in the application of the rules and interpretation of statutes,” Stephen explains, “and a court that would have collective responsibility particularly for civil appellate work would therefore also develop a binding body of authority, which is important in the sheriff court. This is a national collective body which will develop case law that will have a binding effect nationally, rather than develop case law piecemeal from sheriffdom to sheriffdom.”

Can she envisage having benches larger than three to reconsider an earlier decision? “That is a situation that is envisaged by the Act, and it also brings into play whether the complexity is such that it should be remitted to a bench of the High Court of Justiciary or the Inner House” – also competent under the Act on a “complex or novel” point of law.

It is to be hoped, then, that the Scottish Courts website will be more prompt and systematic in publishing Sheriff Appeal Court decisions than the current performance of its sheriff court section.

Practitioners are likely to find more uniformity of procedure in future. As the President notes: “At the present time, the procedural rules for appeal to the sheriff principal are fairly fluid and largely depend on practice notes. But once you have a triple bench there has to be closer regulation of the appellate process. There are some very important developments in the Inner House which are very valuable and worthy of adopting: the appeal management role of the procedural judge, written submissions or notes of argument, restricting the bundle of authorities to a core bundle essential to the case – but obviously all these rules are subject to exceptional circumstances if there is a need for it. Prolixity is to be avoided!”

She points out, however, that the new arrangements also create opportunities for further development of solicitors’ advocacy skills. “Now they will have an opportunity of extending their skills to appearing before a triple bench in the Sheriff Appeal Court (civil) and likewise in summary criminal appeals, which is quite important: it means that the distinction of solicitor advocate rather fades into the background, because in the Sheriff Appeal Court there will be advocates and solicitors appearing. Both are most welcome,” she emphasises.

Sheriff Principal Mhairi Stephen QC

Ready for the rush: the Personal Injury Court

The Sheriff Appeal Court is not the only new national court to fall under Sheriff Principal Stephen’s supervision – the National Sheriff Personal Injury Court, through which Edinburgh Sheriff Court stands to receive the personal injury actions excluded from the Court of Session by the £100,000 jurisdiction threshold, will also add to her responsibilities.

“We are taking the challenge very seriously,” she assures me. “I can’t begin to say how much work has been done behind the scene at all levels, judiciary and staff. There has been a huge collegiate response from the judiciary.”

Not everything that is planned will be in place from the outset. New rules covering civil jury cases will be there – all cases that do not settle will be heard by a jury unless parties agree otherwise or special cause is shown – as will e-motion procedure, and rules replicating the Court of Session procedure for complex cases, but new provision for a pre-action protocol will follow later.

Like Glasgow, Edinburgh has had a specialist PI court for some years now – Stephen herself helped set it up as a sheriff – and the new operation can build on that, with six sheriffs to be designated as specialists in the field. That is two or three times the number required for the expected volume of cases, but Stephen does not intend that they sit exclusively in the PI court. “Personal injury work will be programmed every week of the year, but as we all know, not a lot of these cases proceed to proof or jury trial, so it would perhaps not be the best use of dedicated shrieval time to be warming up on the bench waiting for the civil jury trial to start. So there has to be a degree of realism, and also from an administration of justice point of view it’s much better to have a flexible cohort of sheriffs who have experience of personal injury work.”

Is she expecting it to receive many cases that would otherwise be litigated locally, as well as those that will be excluded from the Court of Session? “It’s difficult to tell, but I hope that the advantages of having dedicated and experienced sheriffs, civil jury procedure and e-motion procedure will resonate with pursuers and their agents when raising PI actions. All of these are very positive steps and replicate the advantages that we were aware practitioners were urging on us when we were discussing Court of Session procedure.”

Strictly speaking it is possible for the court to sit elsewhere than in Edinburgh, but Stephen does not envisage this other than in exceptional cases where practical considerations dictate.

She adds: “My experience has been that it is very popular to litigate in Edinburgh, irrespective of where the pursuer lives or the accident took place, because there are benefits due to the whole culture of Chapter 43 procedure and these benefits should now migrate to the Sheriff Court here.”

No one knows yet whether there will be a rush to raise actions in the Court of Session ahead of the jurisdiction threshold rising on 22 September, but there seems no obvious reason why there should be. 

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Tom Muirhead

Thursday August 20, 2015, 23:30

One problem that will face the new Sheriff Appeal Court is that all Sheriff Principals are commissioners of the Northern Lighthouse Board.

They fulfill this duty alongside the Lord Advocate and the Solicitor General of Scotland (and quite a few others).

So, in all summary criminal appeals the Crown (the Scottish Executive) and their two senior officers in this field (the Lord Advocate and the Solicitor General of Scotland) are personally known to every Sheriff Principal sitting in the new Sheriff Appeal Court.

Now please cast your mind back to the recusal of Sheriff Principal Scott QC from the fatal accident inquiry concerning the Glasgow bin lorry tragedy. The Sheriff Principal (correctly IMHO) recused himself as he knew personally one of the deceased.

It clearly follows that all Sheriff Principals must recuse themselves from all summary criminal appeals as they personally know the two senior members of the Crown Office and Procurator Fiscal Service who will be the respondent in every appeal.

Does this mean that this new court is dead in the water?

Please note that in my opinion this is far from the most serious problem that this new court faces.

Regards,

Tom Muirhead