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Scotland – All Change M’Lud

Scotland – All Change M’Lud

As the new series of Downton heralds many changes for the Lords, Ladies and Gentlemen of that stately pile, so 22 September 2015 brought very significant changes for the Lords Ordinary in Scotland’s higher civil court and the cast of thousands involved in civil litigation in Scotland. 

So what would M’Lud Grantham select as his personal highlights worthy of a Christmas special?  Here are two key ones:

  • As of 22 September 2015, only the lower tier Sheriff Courts (equivalent to County Courts in England) are able to deal with cases up to £100,000 in value (with very limited exceptions).   This is a change from a previous limit of only £5,000.  This is going to have a big impact on where and how cases are dealt with, particularly in the area of product liability where cases have in the past, typically straddled this threshold.  It will be possible to ask for the case to be transferred to the upper tier civil court, the Court of Session (equivalent to the High Court in England), but this is a procedure that is yet to be tested under the new system.
  • There is a new specialised personal injury Sheriff Court, based in Edinburgh.  This has jurisdiction over all personal injury cases throughout Scotland.  It is intended to be a centre of expertise, with specialist judges.  Product liability cases involving personal injury therefore have to be raised in this specialist court if they are under the £100,000 threshold, with the same ability to apply to transfer the case to the Court of Session.  Jury trials will be available for cases proceeding in this specialist PI court.

What is the likely impact of these two far reaching changes? 

There may still be a preference to raise claims in the Court of Session and it will be interesting to see how this is achieved.  One reason for this is that in the Sheriff Court specific sanction has to be sought from the court to use counsel, if their fees are to be recoverable.  There may be a reluctance, indeed a difficulty for some, in putting at risk the support offered by counsel. 

Also, there is currently some precedent for judicial case management of cases in the Court of Session, including in the area of product liability, which some parties may find beneficial particularly where there are relatively large numbers of claims involved.  Whilst there will be a new case management procedure for complex PI cases in the Sheriff Court, again this is currently untested. 

It is worth noting that there are no class or group action procedures in Scotland at present, nor are these being introduced at present.  The Scottish Government has undertaken a public consultation on this topic, but no changes are likely for the foreseeable future. 

Here are one or two other changes afoot:

  • From the same date, final appeals to the Supreme Court in London now need to obtain leave from the civil appeal court in Scotland, failing which the Supreme Court, before proceeding.  Until now, all that was required was the approval of two counsel that the matter was suitable for the Supreme Court.  This brings Scotland in line with England and Wales.
  • Similarly, in judicial review proceedings, a new permission stage has been introduced, so that applicants must now apply at the outset for permission to bring proceedings by demonstrating that they satisfy the prescribed conditions.  Again, this was not previously a feature of judicial review proceedings north of the border. 

And last but not least, like every good drama here’s a trailer of what’s on ‘next time’.  

  • Following a major review of expenses and funding of civil litigation, the Scottish government has announced its intention to bring forward legislation to allow damages based (contingency fee) agreements, introduce qualified one ways costs shifting in personal injury cases and put a cap on success fee agreements.  These are designed to open up justice to the ‘excluded middle’, and could potentially herald a big upsurge in civil claims in Scotland, including in the area of personal injury and product liability.

So if Downton leaves you cold, or it’s given you a taste for more gowns and robes, keep your eyes on Scotland and you won’t need to change the channel.

Joann Fulton