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Justice 2 Committee, 14 Nov 2001

14 Nov 2001 · S1 · Justice 2 Committee

Item of business

Subordinate Legislation

Draft Small Claims (Scotland) Amendment Order 2001<br />Draft Sheriff Courts (Scotland) Act 1971 (Privative Jurisdiction and Summary Cause) Order 2001

Gray, Iain Lab Edinburgh Pentlands Watch on SPTV

There are two different points. I was responding to Mr Aitken's point about the role of the Court of Session in developing the law of Scotland by taking its decisions. My point is that the effect of passing the order will be small, because the number of cases that fall into the category of having the potential to change the law is very small. Your point is different, and it is important.There is no doubt that the vast majority of cases of the kind that we are discussing are settled. That makes it difficult to obtain evidence on what occurs in those cases and to judge what the impact of change might be. The vast majority of outcomes involve a private arrangement between the parties.There is concern that, although the cases raised in the Court of Session are mostly of significantly greater value than £5,000, many of them are settled for less than that amount. If that is the situation, concern about the scale of recoverable expenses—what could be recovered and the costs that would have to be carried by the litigant or a trade union that backed the claim—could have an impact on the outcome. If a case was raised in the Court of Session but settled below the limits, the scale of fees and recoverable expenses that would normally apply would be the Court of Session scale. That would be the situation unless the opponent raised an action with the court to have a lower scale of expenses applied. The evidence that we have suggests that that hardly ever happens. There is no evidence that the court would as a matter of course agree to such an action.I am not convinced that the central concern about cases being raised in the Court of Session but settled for less than £5,000—the privative jurisdiction limit—would have the impact that has been suggested. However, I return to the point that I made initially: it is very difficult to obtain evidence on what happens in such cases. If the Parliament approves the order, we will commission a monitoring and research project that could cover the first 12 months of operation of the new jurisdiction limits. For the first time, we would endeavour to find a way of obtaining evidence on what happens in cases that are settled as well as in cases that are defended. That might prove difficult. It would require consultation with the legal firms that do the work and the examination of cases that have, for example, been anonymised. Nonetheless, I believe that we must address the issue, because at the moment the private nature of settlements means that we do not have the evidence base that we need.

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Justice 2 Committee, 14 Nov 2001

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