The measure is one of a number of civil court reform recommendations made by Lord Gill in his Scottish Civil Courts Review, commissioned in 2007; and is included in the newly-published Courts Reform (Scotland) Bill. The proposed legislation, which must now be debated and approved by the Scottish Parliament, also includes a three-month 'time bar' on bringing a claim for judicial review to the Court of Session and the introduction of a new 'leave to appeal' stage before cases can be appealed to the Court of Session and UK Supreme Court.
Justice Secretary Kenny MacAskill said that the reforms would increase the effectiveness and efficiency of the Scottish civil courts, which have become "clogged up" with lower value personal injury cases raised in the Court of Session. However, civil courts expert Craig Connal of Pinsent Masons, the law firm behind Out-Law.com, said that the proposals would alarm many businesses as they could effectively find themselves unable to access Scotland's higher courts.
"As a commercial firm we have always supported the aim of removing mountains of modest value personal injury cases from the Court of Session but have always been very concerned about the proposal to move business of all kinds up to a value of £150,000 to the Sheriff Court," he said. "That can represent a critical amount for many businesses, particularly in the current times; and to be told - as the Bill does - that businesses will not be able to access Scotland's top judges in such cases is worrying."
"Most businesses will welcome the new time limits on judicial review as providing more certainty than the existing law, and the addition of a 'leave' provision is again welcome if its prime aim is to cut out ill-founded claims early. However, if it goes beyond that and becomes an obstacle for genuine challenges it may yet cause issues - that remains to be seen," he said.
In his 2009 report Scotland's highest-ranking judge, Lord Gill, said that the Scottish court system was "slow, inefficient and expensive". He was concerned that the civil courts were not specialised enough, and that cases were routinely deferred or interrupted to make way for criminal matters. Parties to civil cases complained of lengthy waiting periods before their cases were heard, and of delays to judgments issued by the Court of Session.
Lord Gill pointed out that the jurisdiction of Scotland's two main civil courts tended to overlap, allowing parties to choose where to litigate regardless of the case's importance or complexity. The Edinburgh-based Court of Session is Scotland's supreme civil court and should deal with difficult or high-value cases, while locally-situated sheriff courts should deal with less complex, lower value cases.
If approved in its current form, the Bill would increase the threshold under which the sheriff court can exclusively deal with civil cases from £5,000 to £150,000, with the intention of freeing up the Court of Session to deal with the most challenging civil cases. Family cases and judicial reviews would still be able to be brought to the Court of Session, and some other cases could also be remitted to the Court of Session in exceptional circumstances. The Bill would also introduce greater specialisation to the sheriff court, and create a new specialised personal injury sheriff court to deal with the high volume and administrative burdens generated by this type of work.
A new judicial post of 'summary sheriff' would be created to hear lower value civil cases such as debt cases, and less serious criminal cases. These sheriffs would be experts in these types of cases; and in many cases would be able to use simpler procedures to resolve disputes more efficiently. A national Sheriff Appeal Court would also be created to deal with summary criminal appeals from sheriff and justice of the peace courts, and civil appeals from sheriff courts.
A three-month time limit within which judicial review cases must be brought in the Court of Session, starting from the date that the grounds giving rise to the application arose, would be introduced by the Bill. The court would retain discretion to allow applications to be made outside of this period, for example if there is a good reason for the delay or where the court is satisfied that injustice would result if the application was not allowed to proceed. A new preliminary stage would also be introduced at which permission to proceed to judicial review would be granted or refused, based on whether the challenger has sufficient interest in the subject matter and whether the application has a real prospect of success.
The Bill also sets out new provisions for appeals from the Court of Session to the UK Supreme Court, and for appeals from the new Sheriff Appeal Court to the Court of Session. At present, it is competent to appeal to the UK Supreme Court against certain judgements without requiring leave from the Inner House. The only restriction is that the appeal must be certified by two counsel or solicitor advocates as "reasonable" before it can proceed to the UK Supreme Court. The Bill replaces this requirement for certification with a requirement instead for the permission of the Inner House or, failing such permission, the permission of the UK Supreme Court.
Similarly, for appeals from the new Sheriff Appeal Court to the Court of Session, permission to appeal must be given by the Sheriff Appeal Court or, if refused by that Court, by the Court of Session. Such permission may only be granted if the appeal raises an important point of principle or practice or if there is some other compelling reason for the Court of Session to hear it. Justice Secretary Kenny MacAskill said that the proposals would "help us ensure that the right cases are heard in the right places – reducing delays, cost and bureaucracy". The sheriff courts would be "well placed" to handle the transfer as the number of cases being transferred from the Court of Session is about 3% of the sheriff courts' current civil caseload, he said.
"This bill takes forward our commitment to ensure that Scotland's civil justice system becomes more accessible, affordable and efficient for those people who need to resolve civil disputes," he said.