Sheriffs could be handed more cases under reforms to Scottish civil court system

The Scottish Government's Courts Reform consultation proposes raising the claims threshold so that more cases will be dealt with locally rather than in the Court of Session. It also proposes creating a new post of 'summary sheriff' to deal with lower-level civil and criminal cases. A three-month 'time bar' on bringing a claim for judicial review to the Court of Session will also be introduced.

The proposals follow recommendations made by Scotland's highest-ranking judge, Lord Gill, in his 2009 report on the Scottish civil courts.

"These reforms will help us ensure that the right cases are heard in the right places and therefore reduce unnecessary delays, cost and bureaucracy," said Justice Secretary Kenny MacAskill. "The proposals will also mean that Scotland's top civil judges deal with Scotland's most complex civil legal cases, with others being dealt with in local sheriff courts where they will still be subject to the same level of scrutiny as before and will be heard more quickly and efficiently, for the benefit of all."

In his 2009 report, Lord Gill said that the Scottish court system was "antiquated" and inefficient. He was concerned that the civil courts were not specialised enough, and that cases were routinely deferred or interrupted to make way for criminal matters. Parties to civil cases complained of lengthy waiting periods before their cases were heard, and of delays to judgments issued by the Court of Session.

Lord Gill pointed out that the jurisdiction of Scotland's two main civil courts "largely overlap", with parties generally free to choose where to litigate regardless of the case's importance or complexity. The way cases were allocated to courts was "wasteful and inefficient" and did not "promote effective delivery of justice", he said.

The Court of Session is Scotland's supreme civil court, and acts as both a court of first instance and a court of appeal. It hears cases exclusively in Edinburgh, and should deal with difficult or high-value cases. Sheriff Courts sit locally, and should deal with less complex, lower value cases. However, practitioners have been frustrated by the amount of lower value and less complex matters commenced in the Court of Session, as these cases have helped to clog the system.

The Scottish Government has proposed increasing the threshold below which civil cases can only be heard by the Sheriff Court from £5,000 to £150,000, freeing up the Court of Session to deal with only the most complex disputes at first instance. A Sheriff Appeal Court would be created to deal with civil appeals and less serious criminal appeals. Currently decisions made by the Sheriff Court can be appealed to the Sheriff Principal in civil cases and then onwards to the Court of Session, or directly from the sheriff to the Court of Session. In criminal matters, appeals are currently made directly to the High Court of Justiciary.

The new judicial post of 'summary sheriff' would be created, to hear lower value civil cases and less serious criminal cases. These sheriffs would be experts in these types of cases; and in many cases would be able to use simpler procedures to resolve disputes more efficiently.

The consultation also proposes the creation of a specialised personal injury sheriff court, to deal with the high volume and administrative burdens generated by this type of work. The specialist court would be able to appoint civil juries to hear these cases, as is currently the case in personal injury cases heard in the Court of Session. Parties will still be able to raise these cases in the general sheriff court, but will not have access to a jury if they do so.

Litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that the reforms were "radical" but warned that the consultation paper left "unanswered questions" for commercial parties.

"As was known, this is the most radical series of changes to the Scottish civil courts system proposed for a very long time," he said. "Apart from the large scale removal of personal injury work from the Court of Session, which many will support, there are a number of unanswered questions from the commercial community as to whether a reconstituted system can offer the same quality of service. We will be studying the outcome of this consultation closely."