Backtracking? Scottish Government Reduces New Court Threshold

The controversial Courts Reform (Scotland) Bill is to be amended after the Scottish Government agreed not to increase the exclusive competence of the sheriff court to £150,000. Instead, it will be increased to £100,000.

The new threshold of £100,000 was agreed during Holyrood’s Justice Committee's stage 2 consideration of the Bill, despite to pressure from MSPs to have the figure set at either £30,000 or £50,000.

The Government’s concession is perhaps no more than a step in the right direction, with much of Scotland’s legal community – particularly its personal injury lawyers – remaining concerned about the ability of claimants to obtain justice.

Raising the current threshold from £5,000 to £100,000 still means that only individuals with personal injury claims worth in excess of £100,000 will have their case heard in the Court of Session and thus have access to expert Council.

Further, a vast number of cases, which would normally be heard in the Court of Session, will still be transferred to sheriff courts – many of which are already working beyond capacity.

Commenting on the development, James Wolffe QC, Dead of the Faculty of Advocates, said: "I am disappointed that the Scottish Government has accepted an amendment which only reduces the figure to £100,000. The Scottish Government knows that, given the distribution of cases in the Court of Session, that makes only a limited difference to the number of cases which will be compulsorily displaced to the sheriff court.”

Mr Wolffe added: “Unless there are changes in the proposed arrangements for sanction for counsel in the sheriff court, this Bill will erode the practical ability of ordinary Scots with personal injury claims to benefit from the effective representation which advocates currently provide for them in the Court of Session. Ordinary men and women who seek compensation for an injury and who can currently instruct counsel on a ‘no win no fee’ basis will be deprived of that opportunity unless the rules on sanction for counsel are changed.”

He concluded by calling for additional changes: "I take heart from the acknowledgment during the debate of the importance of this issue. But words are not enough. Bodies such as the Scottish Police Federation, the EIS, Clydeside Action on Asbestos and the STUC have stressed the importance to their members of retaining effective access to independent advocates. Further amendment to the Bill will be needed if that is to be assured."

The Law Society of Scotland was also quick to comment on the development, with a statement from Fiona Robb, Secretary, Law Society's Civil Justice Committee, reading: "This is a significant concession and we are pleased that the Justice Committee and the Cabinet Secretary for Justice have taken on board many of the comments made on this aspect of the bill and have recognised that raising the current threshold level from £5,000 to £150,000 is too big a leap”

The statement continued: "We have expressed concerns that having a limit above £50,000 could restrict people's access to the higher courts, though this change goes some way towards mitigating this.”

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