1. Increase in exclusive competence of sheriff courts - The change which has received the most coverage is the extension of the exclusive competence of sheriff courts. Although the original figure which the Act proposed of £150,000 was reduced to £100,000 before the Act was passed, the increase is nevertheless considerable when compared with the previous figure of £5,000.
Many concerns have been raised about this, for example, the potential impact on the ability of litigants to access Counsel since their fees require to be sanctioned by a sheriff before they can be recovered in the event of success. But what is the impact likely to be in practice? That is difficult to assess.
It should however be remembered there will be some cases where the Court of Session retains competence regardless of the value of the claim. In addition sheriffs will be able to ask the Court of Session to allow proceedings to be remitted to it if the importance or difficulty of the proceedings makes it appropriate. Just how often sheriffs will be willing to do this and the Court of Session will allow this in practice remains to be seen.
2. Introduction of further specialised courts - It can be expected that many of the cases caught by the higher exclusive competence limit will be dealt with by specialist courts. Specialist courts already exist in Scotland. Commercial action procedure has been available in several sheriff courts for some time with the longest running, at Glasgow Sheriff Court, having recently marked its 15th anniversary. The first specialist court arising as a result of the Act is likely to be the personal injury court located in Edinburgh.
The location of specialist courts will be a consideration for many practitioners when deciding whether it will be preferable to raise a particular action in a specialist court or in their local sheriff court. Meanwhile the location of courts remains a topical issue following the closures of Dornoch, Kirkcudbright, Rothesay, Arbroath, Cupar and Stonehaven sheriff courts. We are anticipating the closure of Dingwall and Haddington Sheriff Courts in the new year, although attempts to save Haddington Sheriff Court continue, and Duns and Peebles Sheriff Courts are scheduled for closure in January 2015.
3. Increased specialisation of judiciary and new judicial roles - Greater specialisation within the judiciary and the introduction of summary sheriffs to form a third tier in the judiciary responsible for lower value cases is also likely to have an impact on the way in which cases are run. The increase in sheriffs' powers, for example, the power for sheriffs to grant a Scotland wide interdict in certain matters, will no doubt be of assistance where a party raising an action feels this level of protection is required but the value of their case does not meet the new exclusive competence threshold.
4. Compulsory pre-action protocols - The potential for the introduction of compulsory pre-action protocols, which were recently reported on in relation to personal injury cases by the Scottish Civil Justice Rules Council, could also create additional requirements prior to the raising of cases in the sheriff courts.
5. Changes to judicial review - A significant change to procedure in the Court of Session will be the change to judicial review procedure. The Act introduces a three month time limit within which proceedings should be raised and also a requirement to obtain permission from the court in order to bring proceedings.
6. Appeals - Finally, it is worth considering appeals. The most obvious change to these is the creation of a new court of appeal, the Sheriff Appeal Court. Arguable benefits include that its decisions will be binding across Scotland and therefore it will aim to increase consistency. The court will be made up of appeal sheriffs. Sheriffs principal will automatically be appointed to this role and there is scope for sheriffs to also be appointed. It will be interesting to see how this court operates in practice and whether the court will travel throughout Scotland to hear appeals.
Other changes to appeal procedure will bring in restrictions on the availability of parties to appeal first instance decisions through increased requirements for permission to appeal and the application of a more stringent test. The previous right to appeal certain judgments to the Supreme Court following the sanction of the cause by two Scottish Counsel is removed.
The next couple of years will allow for further reflection as the provisions of the Act begin to come into force and the implications of how they operate in practice become evident. We will be watching with interest.
If you have any questions about court reform please contact me below or your usual Morton Fraser litigation contact.