Kenny MacAskill, the Scottish justice secretary, agreed to lower the proposed £150,000 limit as the parliament’s justice committee met to consider a number of amendments to the Courts Reform (Scotland) Bill. The higher figure had been recommended by Scottish judge Lord Gill during his review of the effectiveness of the Scottish civil courts.
At the same meeting, MacAskill rejected lower thresholds of £30,000 and £50,000 proposed by Labour and Liberal Democrat MSPs, saying that these were so low that they would defeat the purpose of the proposed change. The change is intended to free up the Court of Session, Scotland’s highest civil court, to deal with more complex cases.
“We have been listening to stakeholders on the issue,” MacAskill told the committee.
“Although the committee has heard from organisations including [consumer group] Which? that support a £150,000 limit, many of those who have appeared in front of the committee think that £150,000 is too high for the exclusive competence. Indeed, the same point was highlighted, to a lesser degree, in the consultation on the bill.”
“I think that [the proposed amendment] strikes a balance between the original exclusive competence figure of £150,000 that was suggested by Lord Gill and the views of some stakeholders, while still being able to deliver the more efficient and affordable system that is intended in the Scottish civil courts review,” he said.
"A £100,000 threshold is better than a £150,000 one but it will still exclude from the higher courts many cases that should be heard there," said litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com. "This debate has focused heavily on personal injury claims to the detriment of those pursuing commercial claims."
"In personal injury cases it is common for initial claims of, say, t £100,000 to settle for a much smaller amount of perhaps £15,000 or even less. This is not so prevalent in commercial claims where a claim for £95,000 is more likely to result in an award of around that sum. Consequently, the sum sued for is not a good measure of the value of a case."
"There are powers to remit cases falling within the sheriff court's exclusive competence to the Court of Session but only in 'exceptional circumstances'. The result is that commercial actions which would benefit from being heard in the Court of Session by the experienced and expert judges there may be denied that opportunity" he said.
If passed in its current form the Courts Reform (Scotland) Bill would implement many of the recommendations made by Lord Gill, Scotland’s highest-ranking judge, in his Scottish Civil Courts Review. In his original report, Lord Gill said that the Scottish court system was “slow, inefficient and expensive”, while the courts themselves were not specialised enough and routinely deferred or interrupted civil cases to make way for criminal matters.
According to Lord Gill, part of the problem was due to the jurisdiction of Scotland’s main civil courts overlapping to a certain extent, which allowed parties to choose where to litigate regardless of the importance or complexity of their cases. By increasing the threshold under which locally-situated sheriff courts exclusively deal with civil cases from the current £5,000, the Edinburgh-based Court of Session would be freed up to concentrate on the most challenging civil cases, he said.
Other recommendations of Lord Gill’s contained in the bill are the creation of a new specialised personal injury sheriff court to deal with the high volume and administrative burdens generated by this type of work; a new judicial post of ‘summary sheriff’ to hear lower value cases through simpler procedures; and a new national Sheriff Appeal Court. A three-month time limit within which judicial review cases must be brought in the Court of Session, and a new preliminary stage introduced to rule out weak claims. The bill also sets out new provisions for appeals from the Court of Session to the UK Supreme Court, and for appeals from the new Sheriff Appeal Court to the Court of Session.
During the hearing, the justice committee also agreed to an amendment clarifying that where separate sums are claimed for in the course of a single dispute, the aggregate value of those claims should be used to decide whether the case comes above the threshold. However, it rejected a proposal that complex asbestos-related claims be exempted from the rules after the justice secretary promised further amendments which would make it easier to remit cases from the sheriff court to the Court of Session under the proposed new regime.