Meeting of the Parliament 21 May 2014
There is general support for court reform. Yes, we want to modernise Scottish courts; yes, we want to make the system more efficient; and yes, we want it to be less expensive and more accessible to users. However, it is not the stated aims but the measures that are supposed to deliver them that require scrutiny. I am concerned that some of the bill’s proposals appear to erode rather than strengthen users’ rights. Of course, that issue can be addressed at stage 2, and I hope that the Scottish Government will be consensual and accept Opposition amendments.
One of the main areas of dispute in the bill is the value of cases to be moved from the Court of Session to the sheriff court—a matter that was reviewed by Sheriff Principal Taylor. With regard to the proposal for the sheriff court to have a privative jurisdiction of £150,000, Sheriff Principal Taylor admitted that the figure was not chosen on the basis of the percentage of cases that would be moved from the Court of Session to the sheriff court; instead, he referred to it as “a judgment call”. In other words, it was simply what he considered to be appropriate for determination by a sheriff, and the highest amount that would be appropriate for the sheriff court. It was not chosen after consideration of the practical consequences for the functioning of courts.
Sheriff Principal Taylor also told the committee that, although the average sum that is sued for is more than £150,000, the average sum that the pursuer receives is less than a third of that. We can see from the figures the number of cases that would transfer and the pressure that that would put on the sheriff courts.
There are significant doubts about whether funding and resources are adequate to back up the proposals. If they are not, it could result in delays for those who use the courts system, and it could have other adverse impacts. I therefore call on the Scottish Government to give assurances that it will address that issue if the figures in its financial memorandum are shown to be overly optimistic.
We must also address inequality of arms. The restriction of litigants’ access to counsel is a matter of widespread concern, and many people would be happier if the bill were amended to ensure that it will not introduce obstacles to achieving equality of arms. Trade unions and solicitors have argued that, particularly in personal injury cases, victims of every workplace injury and disease must be entitled to raise their actions at the specialist personal injury court and have the automatic right to access, or a presumption in favour of accessing, representation by counsel. There were also strong arguments that asbestos cases, although 95 per cent of them are worth less than £150,000, should be dealt with by the Court of Session, given their complexity. The complexity of cases is not necessarily driven by their value.
In conclusion, we need to ensure that litigants can still access representation by counsel when they need it, in order to prevent the balance tipping in favour of defending employers and insurers.
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