Section 92(2) of the 2014 Act provides that, where the Court of Session would also have jurisdiction, the test for a sheriff to consider is whether the importance or difficulty of the proceedings makes a remit appropriate. Figuring out whether or not, in practice, a case is likely to meet this test and therefore merits the making of an application can be challenging. A couple of recent decisions regarding applications to remit can provide some assistance in identifying factors which can be relevant.
Case 1: Cocker v Dumfries and Galloway Health Board
The case of Michael Barrie Cocker v Dumfries and Galloway Health Board and Rupert David Ferdinand  SC EDIN 56 was a medical negligence claim for £1.5 million in which it was alleged that a number of parties had been negligent. It had been raised in the All-Scotland Sheriff Personal Injury Court (ASSPIC). The first defender lodged a motion seeking remit and this was opposed.
The parties' submissions
The first defender's submissions on importance focused on the importance of the case to the pursuer in light of ongoing and significant health problems; the blaming of five members of the first defender's staff with their professional standing put at issue; and the high value of the claim and potential impact on public funds. As regards complexity, arguments involved the complexities arising from the levelling of blame at a number of different people. The questions which would need to be answered to establish causation were said to take the case well beyond the norm. Submissions were also made regarding appropriateness of the remit. These included the likelihood that a number of case management decisions would be required and the suggestion that the tools available to the Court of Session for this were sharper. It was submitted that the potential delay in fixing a new proof diet (of around 10 months if the remit were allowed) was not material.
The pursueropposed the motion. They accepted that the case was important and complex but claimed that this did not justify a remit. The pursuer was elderly, suffered ongoing issues, had ongoing care needs and needed compensation to properly fund these. Possible delay was relevant. Although issues of professional standing were important, these applied in all professional negligence cases regardless of value. As regards complexity, the questions for the court were typical of a personal injury case and no novel issue of law was raised. The cost of running the case in ASSPIC would be similar or perhaps lower than the Court of Session. The judicial and other officers in ASSPIC were specialists, there was no difference in the form of procedure and a proof would be fixed more quickly in ASSPIC. There was no obvious advantage in remitting the matter to the Court of Session.
The court's approach
Looking first at authorities referred to, the decision in Mullen v Anderson 1993 SLT 835 (based on the provisions of the statutory predecessor to the current test) was relevant as the substance of the test had not changed. It required evaluation of all relevant factors including practical issues about the operation of the court. Relevant characteristics identified in Mullen included (i) characteristics of the court's judicial and other officers, (ii) forms of procedure, (iii) classes of work customarily dealt with, (iv) location of the court relative to the residence or place of business of the parties appearing, (v) the expense incurred in using the court, and (vi) the efficiently of its programming for the disposal of work.
The court then went on to consider the motion to remit against the headings of importance, difficulty and other relevant matters.
When reflecting on importance, it was evident that the case was of importance to the parties. However, this factor pointed away from remitting the matter given that it might delay the resolution of the case.As regards difficulty, complexity arising from the number and different categories of medical professional blamed did not make the case so extraordinarily complex as to require a remit. Although causation may not be straightforward, similar questions about causation could arise in a relatively straightforward injury case, for example, where there were pre-existing conditions, loss of future employment or pension responsibilities. ASSPIC was equipped to deal with this.
When considering the other relevant factors the court looked first at characteristics of the judicial officers. Although Outer House judges sat at a higher level, ASSPIC was specifically set up to deal with personal injury cases and its judiciary was selected for their knowledge and experience of these cases so this did not persuade the court to grant a remit. With regard to the factors of form of procedure, work routinely dealt with, location, qualifications of those entitled to practice and expenses there were no advantages to be gained by a transfer to the Court of Session.
The court did not agree with the first defender's position that judicial and administrative arrangements regarding case management in the Court of Session should be a deciding factor. A substantive hearing would be fixed more quickly in ASSPIC than the Court of Session. Although motion hearings were not fixed as quickly in ASSPIC, an urgent hearing could be accommodated if administrative staff were advised. The supposed difficulties relied on by the first defender were more apparent than real and could be addressed without serious difficulty should they arise.
Case 2: AB v CD
In AB v CD  SC PER 6 the defender sought to remit a personal injury claim based on allegations of domestic abuse, which included alleged sexual abuse, to the Court of Session. As regards importance, reference was made to the nature of the allegations against the defender. In addition there were potential issues regarding quantification, causation of injury, time bar and the operation of extensions to the time bar period which were said to be of importance to the public. The pursuer did not oppose the defender's submissions regarding the remit. The case had been raised to avoid time bar and parties where not in a position to proceed to proof.
The court's approach
In contrast to the Cocker decision, the sheriff was ultimately persuaded that the test in section 92(2) of the 2014 Act was met.The following reasons were given:
- The action was clearly of importance to the parties and, in light of the nature of averments which involved allegations of sexual abuse, clearly of importance to the defender.
- Issues of non-consensual sexual acts and domestic abuse were matters which have exercised and continue to exercise the public. There had been recent legislative developments in this area through the Domestic Abuse (Scotland) Act 2018 and the pursuer's averments had the characteristics of behaviour which would be covered by that Act.
- Against this background it would be important to have a decision of the Court of Session on the following issues:
- Potential difficulties regarding time bar relating to the commencement of the triennium under section 17 of the Prescription and Limitation (Scotland) Act 1973 in cases involving a course of abusive behaviour towards an adult.
- Assuming that this did cause difficulty, there was a need for guidance from a superior court in relation to the application of the equitable power available to the court to override the triennium in such circumstances.
- If there were difficulties regarding time bar then there could be issues regarding causation and quantification of damages if some of the actions complained of were time barred.
This case was distinguishable from the Cocker decision as (i) the present action did raise matters of public policy and novel questions of law, (ii) the basis of the claim was quite different, and (iii) the present action had not been instituted in ASSPIC. It was observed that the remit was unlikely to cause any unacceptable delay in the present circumstances. The limitations on the ability to appeal a decision from the sheriff court to the Inner House and therefore obtain guidance from that court were also considered.
So what conclusions can be drawn as to when it might be appropriate for a case to be remitted from a sheriff court to the Court of Session? The first point that should be made is that the question of whether a remit will be justified in any particular case will depend on the circumstances arising in it.
It is clear from these two decisions that the mere fact that a case is identified as being important and difficult will not be enough to require a remit. Consideration must also be given to the practical impact which the remit of the case could have and matters such as any likely delay or increased cost caused by the remit will be relevant. It does appear that the specialist nature and experience of the judiciary of ASSPIC could count against remitting a personal injury case which has been raised in that court. The novelty of the issues arising in the case is also to be important. If a case does not raise novel issues of law then it will be more difficult to persuade a sheriff court to remit it to the Court of Session.