Litigation: Court reforms come into effect in Scotland

This is an historic week for Scots Law, as the implementation of the long-heralded reforms of the civil justice system begin to take effect. It is also the end of the summer recess in the Court of Session, and the new term is ushered in without a new Lord President at the helm.  The Lord President is, of course, the most senior civil judge in Scotland, and the position remains vacant after the sudden and unexpected retiral of the last incumbent, Lord Gill, in May this year.  Lord Gill was, of course, instrumental in driving forward the aforementioned reforms, and his decision to retire before the reforms take effect was thought by many to be a surprising one.

On any view, the reforms are likely to have a dramatic effect on the numbers of advocates practising at the Scottish Bar because one of the more controversial reforms is an increase in the privative jurisdiction of the Court of Session to £100,000.  In other words, actions where the sum sued for or the pecuniary value of is less than £100k can no longer be raised in the Court of Session and will have to be litigated in the sheriff courts.  As a result, a significant number of personal injury cases will be transferred out of the Court of Session to a newly created 'All Scotland' specialist P.I. court, whose rules and procedures are as yet uncertain.  Whether this will prove a positive change remains to be seen, but on one view, it is overly simplistic to equate pecuniary value with complexity.  There are provisions to remit the proceedings out of the sheriff courts to the Court of Session, but it is thought that few applications to do so will succeed.

There is also a question mark over the grant of sanction for counsel in the P.I. court, and it is to be hoped that such applications will be considered at the outset of proceedings rather than at the end, as has hitherto been the case - otherwise parties will inevitably be cautious of incurring costs which might prove unrecoverable.   Equally, one of the reasons given for the specialist P.I. court being based in Edinburgh is the wealth of skill and knowledge of the Bar, which currently practices there - so hopefully a realistic approach will be adopted.

Other changes being implemented this week affect Judicial Review proceedings.  Judicial review has, over recent years, grown significantly, as the number of areas in which non-judicial decision making takes place has greatly increased.  A glance at the daily Rolls of Court will confirm the number of such actions ongoing at any time.  New rules will now introduce a sift procedure, so that only cases with real merit are permitted to proceed and, in addition, there will be a time bar for the raising of such proceedings - 3 months from the date of the decision under scrutiny - which seems an unrealistically tight timescale when issues of funding will also have to be resolved before a decision to seek review can be taken.

Changing times and no one is certain how things will pan out - watch this space!