Hansard

I am delighted to open this stage 1 debate on the Courts Reform (Scotland) Bill. I record my thanks to the Justice Committee for its consideration of the bill and my thanks to the many stakeholders who have contributed to the process.

It was back in 2007 when my predecessor, Cathy Jamieson, asked Lord Gill to undertake a review of civil justice. Lord Gill and his review team undertook an extremely comprehensive and thorough review over a period of two years, receiving more than 200 consultation responses. The review reported in 2009, making more than 200 recommendations to improve what it described as the “slow, inefficient and expensive” Scottish civil justice system. The bill takes on the majority of Lord Gill’s recommendations and will put in place reforms that he recently described as being “50 years overdue”.

The main principles of the bill are that the right cases should be heard in the right courts, that unnecessary delays and disproportionate costs to users should be minimised and that the efficiency of the courts should be increased. I am pleased that the committee welcomed the general principles of the bill and broadly agrees with many of the proposals, including those on the creation of summary sheriffs, simple procedure and increased specialisation, and that the exclusive competence of the sheriff court should be increased significantly in order to deliver the reforms.

The vision is that personal injury cases, for example, will be dealt with in a new national specialist personal injury court by specialist sheriffs, with procedures that facilitate swift and appropriate settlement at a more proportionate cost to litigants. Personal injury litigants will continue to be able to raise their claims in their local sheriff court if that meets their needs. There will also be a renewed focus on specialists at the shrieval level, and the Lord President will be able to designate areas such as family law, commercial law and personal injury cases as specialisms.

I turn to the exclusive competence of the sheriff court, in relation to which there have been calls for a lower threshold than £150,000. We will consider all views, although we believe that £150,000, which was the figure set by Lord Gill in his review, is the appropriate level. That is why we consulted on that figure and included it in the bill.

It is important to ensure that any new level that is set for cases raised in the sheriff court reflects the fact that, at present, too many low-value cases are being raised unnecessarily in the Court of Session. That results in increased costs for all parties involved and deters other types of litigation from being raised there. It is also important to ensure that the exclusive competence level allows a suitable amount of business to transfer to the new specialist personal injury court. On the attempts to lower the exclusive competence, the lower the level, the less chance we have of delivering more proportionate costs to litigants.

Lord Gill’s review chose the figure of £150,000 on the basis that, on average, the sum sued for at the beginning of a case is three times higher than the settlement figure at the end of a case. Those who advocate a lower limit of £20,000 to £50,000 base those figures on the sum settled, but that would be unworkable as the sum settled is not known at the beginning of a case, when a decision needs to be taken on which court it is to be raised in. Sheriff Principal Taylor stated to the Justice Committee that a limit of £50,000 would mean that cases of a value of around £17,000, on average, would continue to be heard in the Court of Session.

There are those who say that we will see a deluge of cases descending on sheriff courts, but that will simply not be the case. The personal injury court will be up and running to coincide with the increase in exclusive competence. Lord Gill told the Justice Committee:

“I am absolutely certain that the capacity exists in the sheriff courts to absorb all of the business, even with the closure of the outlying courts.”—[Official Report, Justice Committee, 22 April 2014; c 4541.]

Figures provided by the Scottish Court Service suggest that approximately 2,700 cases will transfer from the Court of Session. We should compare those figures with the caseload of 72,510 civil cases in the sheriff court in 2012-13, which is a decrease of around 10 per cent since 2011-12 and a decrease of 43 per cent—or more than 50,000 cases—since 2008-09. Despite that fall in cases in the sheriff court, the Court of Session caseload has remained relatively stable, with personal injury cases making up almost 80 per cent of all cases in the general department.

The vast majority of personal injury cases settle before they come to a court hearing. On personal injury cases, Lord Gill said:

“only a tiny fraction of the cases that are in the Court of Session ever get to proof. They are settled and dealt with administratively, and that is it ... If that is the situation, they can be dealt with equally well administratively in the sheriff court at much lower cost and where the infrastructure is also in place.”—[Official Report, Justice Committee, 22 April 2014; c 4536.]

We have heard some concerns that litigants would no longer be guaranteed automatic sanction for counsel in cases that are to be raised in the new personal injury court. Under the bill, complex cases can be remitted to the Court of Session, where sanction for counsel is automatic. In my experience, asbestos cases are often very complex, so we would expect those cases to be remitted to the Court of Session. However, as Sheriff Principal Taylor said to the committee, even if those cases were not remitted to the Court of Session, they would almost certainly merit sanction for counsel.