David Sandison on the Government’s Response to the Scottish Civil Courts Review Recommendations

As published in the Scots Law Times earlier this year, David Sandison discusses the likely impact of the Scottish Government’s response to the recommendations of the Scottish Civil Courts Review.

The Scottish Government, on 11 November 2010, published its response to the Civil Courts Review. The response confirms the government’s acceptance of “the vision provided by Lord Gill”. The government will implement the recommendation to introduce new district judges as a “third judicial tier”. The judges would be funded through a substantial reduction in the current complement of sheriffs and senators.

The government accepts the proposed limit of £150,000 for the new privative jurisdiction of the Sheriff Court. A specialised personal injury court would be established as part of Edinburgh Sheriff Court.

In this article the writer seeks to explore the likely impact of the government’s proposals. Reference has been made to statistics obtained from the Sheriff Court and Court of Session under the Freedom of Information Act 2000.

Personal Injury Cases

The Court of Session in 2010 handled 3,152 personal injury cases. This takes up three quarters of the work of the court.

At present in the Court of Session four day proof diets are routinely allocated. Counsel’s fees are recovered automatically in successful cases. Currently around three to five judges are available to hear any proofs that proceed. As a result of the proposed change, the bulk of the 3,152 caseload will be transferred to the sheriff court. The government suggest that 600 personal injury cases a year would remain in the Court of Session. They base this on an assertion that “between 1st April 2009 and 31st March 2010, the value of the claim exceeded £150,000 in around 600 personal injury cases raised in the Court of Session. These cases would continue to be heard in the Court of Session.”

As all practitioners know the value of a claim bears no relation to the final settlement figure.

In fact the civil justice review’s own figures provide an indication of the likely caseload left following the introduction of a £150,000 limit which readers must remember will be strictly enforced. Lord Gill did not want any cheating: “We recommend the adoption of a rule that where a pursuer is awarded a sum less than the privative jurisdiction of the Sheriff Court; expenses should be awarded on the Sheriff Court scale unless the pursuer can show cause why it was necessary or appropriate to raise the action in the Court of Session.” (p.75 of the review). The civil justice review itself has figures (p.280) which were supplied by insurers comparing the relationship between the sum sued for and the settlement value. The ratio varied between 28 and 48/100. The bulk of the settlement values were around a quarter of the sum sued for. Six hundred personal injury cases will not remain in the Court of Session. Around 100-200 would be an optimistic figure. That leaves a figure of around 2,800 personal injury cases to find a home. They could go to the new “personal injury court” set up in Edinburgh staffed by two additional sheriffs. Assuming agents dealing with bulk personal injury work wish to use a centralised court, Edinburgh Sheriff Court is likely to be faced with 2,000 additional personal injury actions. For the year January to December 2010, Edinburgh Sheriff Court handled 284 personal injury cases. The workload may increase 10 times and the court clearly has no current space for handling this additional work allocation.

One must assume, therefore, that the caseload will be referred back to the very empty Court of Session, to become a sheriff court annexe. Some of the cases will go to the already overburdened sheriff courts. It has been clear from the outset that one of the key areas for reform in the civil justice review is the sheriff court. Lord Gill talks of the “distorting effects of criminal business”, “the start of the day’s civil business is often delayed by a variety of criminal matters”, but surprisingly his solution is to add more complex cases to an already overburdened caseload.

You may think the new district judges will be able to assist. Remember that they are only dealing with cases under £5,000 and 70/80 percent of their workload will be summary criminal business (government recommendations, p.24, para.106). The sheriff courts in Scotland do not have experience in dealing with complex personal injury matters. FOI statistics (January 2010-December 2010) from the sheriff court reveal that the total number of (non-summary cause) accident at work personal injury actions raised in all Scottish sheriff courts amounted to 474. The number of industrial disease cases was 13 (three asbestos, seven repetitive strain injury and three vibration white finger). The total (of non-summary cause) personal injury cases in the sheriff courts of Scotland was 3,193. There were 335 summary cause accident at work cases for all Scottish sheriff courts.

It would appear that the sheriff court personal injury workload will therefore double with the assistance of two extra sheriffs to cope. Not only that, but the reader must take into account the very substantial reduction in the number of sheriffs. Lord Gill talks of a transitional period, at the end of which “the existing shrieval complement would be reduced by around half the current number of permanent posts”. In relation to the Court of Session, “there will be a substantial reduction in the number of senators”. So we look at this background of a doubling of the personal injury caseload in the sheriff court with half the number of sheriffs able to deal with the cases. The sheriffs are unlikely to have any experience in handling asbestos or industrial disease work. The sheriffs will, in addition, be dealing with the extra complexity of jury trials. Solicitors themselves will have to deal with higher value and complex cases, raising the question of whether indemnity premiums will rise. Solicitors will be left with a dilemma of whether to advise clients in every ordinary sheriff court personal injury action whether they are entitled to a jury trial. Routinely sheriff courts allocate a one day hearing and if special cause is shown, two days. Accordingly there are likely to be substantial continuations in any case that proceeds to trial while court time is found.

Commercial Cases

The position for commercial practitioners is probably even more bleak. Fergus Ewing, MSP, announced the appointment of Sheriff Principal James Taylor to begin a review of the costs and funding of litigation in Scotland. The appointment was preceded by the remark: “It is the Government’s desire to make Scotland a forum of choice for litigation and to ensure access to justice for all Scotland’s population.”

It is to be noted that the government’s first priority is to make Scotland a forum of choice for litigation, and secondly, follows, “Access to justice for all Scotland’s population.” The government’s response of 11 November suggested that just under a fifth of the personal injury cases, 40 percent of the ordinary causes and three quarters of the commercial actions currently heard in the Court of Session would still continue to be heard in the Court of Session. Remember, however, this figure is posited on the records of sums sued for kept by the Court of Session and available to the government.

It is not a true reflection of the likely caseload because, as outlined earlier, there is a distinction between the sum sued for and the actual settlement.  A commercial claimant with a £300,000 will have to be wary that the case is not settled for less than £150,000. If that happens, Court of Session expenses, including counsel’s fees, will not be recovered. In the circumstances it is likely that there will be a very large reduction in the number of commercial actions currently raised in the Court of Session. At present, the commercial caseload in the court is relatively small and handled by three experienced commercial judges. An audit of the Court of Session general department in a two week period in 2007 (quoted by Lord Gill on p.278) found a total of one commercial action being raised per week. The end result for commercial litigators is that the bulk of their Court of Session caseload will be transferred to the sheriff court. They will not have the luxury of a “specialist” court in Edinburgh to deal with the cases which will then be dispersed throughout Scotland. There will be fewer sheriffs available to deal with the cases. The cases will proceed without automatic sanction for the payment of counsel’s fees. This is unlikely to make Scotland a forum of choice for litigation.

The Judiciary

The most severe impact of the civil justice review proposals will be felt on Scotland’s judiciary. The writer’s review of other civil justice reviews and the comments by the leader commentator on reviews, Dame Hazel Genn, fail to reveal any civil justice system which has improved the quality of its justice or public access by halving the number of top judges. In fact Dame Hazel Genn in her Hamlyn Lectures on “Judging Civil Justice” quotes Lord Woolf in pointing out “the standard of justice in a particular jurisdiction...continues to depend primarily on the quality of its judges”. The future for the judiciary in Scotland and potential aspirants to a judicial position is extremely bleak. The government will need to stop appointing both senators and sheriffs. The judges cannot be laid off so they will gradually be allowed to retire and any new judicial appointments will be restricted to district judges. Remember that these district judges will only be hearing civil case of us to £5,000. Their primary role will be handling summary criminal business and they will be paid substantially less than sheriffs. There is to be no promising outlook for solicitors or advocates currently at the peak of their profession. Their future career option is to become a district judge. In England district judges only handle civil work and their jurisdiction allows them to deal with cases up to £25,000. This is not proposed in Scotland. The impact of these proposals on the Scottish Bar will be calamitous. There will be a rump of the current Court of Session caseload retained and no automatic sanction for counsel to undertake litigation in the sheriff court. The reduction in the size of the Bar would remove from the pool of legal talent precisely those specialists who could deal with increased commercial work which the government seeks to entice to Scotland.

As outlined above, it is hard to identify what benefits the government’s proposals will bring. Even more surprisingly the additional annual judicial costs for the introduction of district judges would be £1.2million.

This is not a “vision” which the writer welcomes.

David Sandison, Senior Partner, Lawford Kidd
Member of the Civil Justice Committee of the Law Society of Scotland