The winds 
of change to 
our courts are upon us

The latest figures concerning the use of our Scottish court system have been published. While they may appear unremarkable at first glance – in that the number of cases initiated in Scottish courts is almost identical to last year’s – the figures do represent a minor triumph for the court system in that the seemingly inexorable decline appears to have halted. In 2013/14, there were 77,345 cases initiated in all courts in Scotland. The figure for 2012/13 was 77,453. During the same period, the number of Sheriff Court actions has increased by just one case, from 72,510 to 72,511.

Since 2010, there has been a 41% reduction in the number of cases raised in court. The figures for each Sheriffdom are variable, ranging from a drop of 6% of cases raised in Glasgow and a rise of 7% of cases raised in Grampian, Highlands and Islands. Glasgow appears to be the most litigious place in Scotland with 19 people out of every 1,000 of the population initiating court proceedings. Any clear explanation for this is difficult to come by, though it is likely 
that the greater density of business and daytime working population (rather than residents) will have something to do with it.

So, do these figures give us any indication as to the future of the Scottish court system and its potential direction of travel in the next five years? Has the steady decline of the last five years truly been halted? Or will we perhaps witness a bounce back the other way? Whatever 
the trend, it is important for those considering the development and setting the budgets for our court system to address these questions.

One thing does seem certain, however. We can expect to see a significant shift in workload from the Court of Session to our Sheriff Courts. Our courts have just undergone the most radical change seen for a generation. On 22 September 2015, courtesy of key elements of the Courts Reform (Scotland) Act 2014 coming into force, the Sheriff Court was granted exclusive competence over all Scottish cases with a value of up to £100,000. Essentially, any action with a value lower than that can now only be raised in a Sheriff Court and not in our higher court, the Court of Session.

Before the changes came into play, the Court of Session’s caseload comprised 
78% of personal injury cases. The vast majority of these were for a value of less than £100,000. So, the figures suggest 
that our Sheriff Courts are about to experience a significant increase in workload as the Court of Session becomes very much quieter, with its focus shifting to specialist areas such as intellectual property disputes, high-value and complex commercial actions and judicial review.

The court reform changes incorporate a number of exciting new developments. There is a new Sheriff Personal Injury 
Court within Edinburgh Sheriff Court 
that will be able to deal with cases from across Scotland. As its name suggests, this court only deals with personal injury actions. Normally those cases will have to have a value in excess of £5,000 but the court will also have competence to handle work-related injury claims with a value as low as £1,000.

It is intended that the court will replicate the specialist service previously available in the Court of Session. To that end, six sheriffs experienced in personal injury cases have been appointed to handle the caseload and new procedures have been introduced. In particular, it is now open to pursuers in the new court to have their claim determined by a civil jury, which 
is not an option open to those who use a local court. The cumbersome system for handling motions used in other sheriff courts has been replaced in the Sheriff Personal Injury Court by a copy of the 
highly successful Court of Session procedure to allow for intimation and lodging of motions by e-mail.

In spring 2016 we should see ‘simple procedure’ introduced to replace the existing small claims/summary cause procedures. At present it is proposed 
that all cases worth up to £5,000 will 
fall under simple procedure, although it seems not inconceivable that this limit 
may be raised in future. These cases, 
along with certain family matters, time 
to pay orders and diligence, will normally 
be considered and disposed of by 
summary sheriffs. This is a new judicial 
tier created by the 2014 Act that is designed to take some of the civil (and criminal) strain from sheriffs, freeing 
them to devote more time to dealing with more complex/significant matters.

Despite the creation of the new Sheriff Personal Injury Court, it is still possible for litigants to continue to raise personal injury actions in a local Sheriff Court. Procedural reforms have not been confined to the all-Scotland Sheriff Personal Injury Court so local courts now also have the ability to judicially case manage clinical negligence and other complex cases, including those involving catastrophic injury. Interestingly, it may be cheaper to litigate in a local court. The court fees payable at various stages of procedure in the local courts have increased slightly but actions raised in the Sheriff Personal Injury Court are subject to fees akin to those payable in the Court of Session. That may have an impact on the number of cases raised in the new court, which would, in turn, have financial implications for the operation of the courts system. It has to be borne in mind that personal injury cases have historically accounted for around 55% of the Court of Session income from court fees.

If, however, most parties opt for the specialist court, then the personal injury business of the local courts may well reduce significantly. It seems unlikely that there will be any real significant flow of non-personal injury work coming to the Sheriff Court from the Court of Session since most such cases will be worth in excess of £100,000. It has already been the case that a number of Sheriff Courts have closed in recent years, including Dunoon, Kirkcudbright and Rothesay. How many other courts will follow in light of these new changes? In many areas, there will always be the need for a court given the steady flow of criminal cases. However, only time will tell if this will be enough to justify maintaining expensive buildings, staff and the infrastructure a court relies upon. How many sheriffs will 
we need and in what location?

The courts reform changes are, of course, intended to have an impact on the workload of the Court of Session and it is accepted that reallocation of business (and, in particular, personal injury business) will result in fewer cases at first instance in that court. There will be a further loss of business when the second tranche of reform comes into effect in January 2016. From that date the newly established Sheriff Appeal Court will start hearing civil sheriff court appeals. The current position whereby appeals are dealt with locally and heard by a single sheriff principal will be swept away and all appeals against a sheriff’s decision will instead be heard by Appeal Sheriffs sitting in the new court. The ability to appeal as of right to the Inner House of the Court of Session will disappear. The result is that the Inner House will only become involved in appeals from the Sheriff Court if permission is granted. Normally, permission will be appropriate only where the appeal raises some important point of principle or practice. It seems likely that permission will not be granted lightly, with the result that the majority of Sheriff Court cases will end 
once the Sheriff Appeal Court has disposed of any appeal.

What then for the Court of Session? The effective and streamlined Commercial Court is certainly likely to continue to flourish. It resolves complex/valuable commercial disputes speedily thanks to expert judicial case management and it is unlikely that much business will have to transfer to the Sheriff Court. The same goes for significant categories of intellectual property disputes (although not all) where the Court of Session will remain the designated exclusive court. The applicable specialist IP rules will continue to allow for specialist judicial case management. Other disputes may also remain in the Court of Session – at least for the time being. Although the 2014 Act makes provision for sheriffs to grant Scotland-wide interdicts and make other orders to apply throughout Scotland, those provisions are not yet effective. Some actions, even those with a value below £100,000, will continue to be raised in the Court of Session for that reason. It is certainly not going to be business as usual though. At a recent conference the Lord Justice Clerk, Lord Carloway, made it clear that it was anticipated that much of the workload of the Court of Session would be made up of increasing volumes of public and public interest litigation. New rules governing judicial review are now in operation with applicants having to deal with the creation in the 2014 Act of a three-month time limit for lodging a petition and the hurdle of a permission stage. Consolidating caseloads and directing 
cases to those specialists who are best qualified to deal with them can only be a good thing for our system of justice though habitual users of local courts, particularly in rural areas, may not necessarily agree. Under the new system, some parties will have to raise actions in courts 50 to 100 miles away. However, it seems inevitable that future rule changes will be designed 
to allow parties to litigate at a distance. 
The recent reforms make specific reference 
to the use of video conferencing for the 
pre-trial meeting required by the personal injury rules, and rules already exist that allow the courts to permit witnesses to give evidence by video link. It is clearly the intention that there should be greater use of technology in relation to how a case progresses through the court. Procedures such as lodging productions, updating pleadings and how parties meet for hearings will all benefit from the application of technology. Hearings in Sheriff Court commercial cases are already frequently conducted by telephone and it isn’t hard to foresee a time when video conferencing will 
avoid the time and expense involved in solicitors travelling to and from court. 
Gone will be the days when solicitors wait for over two hours to appear at a hearing lasting five minutes. Efficiency will be the name of the game.

As well as the imaginative use of technology, which can only be seen 
as a positive step forward, there are a number of alternative dispute resolution procedures that are already popular with both individuals and businesses, and are having the beneficial effect of taking some of the pressure off courts. Arbitration, mediation and adjudication have been around for some time and are no longer 
on the periphery of dispute resolution 
but rather very much at the heart of it. 
So, for our court system to remain relevant and ‘in the game’ it has no choice but to modernise and adapt to become more efficient and cater to the needs of all its users, both the parties themselves and their agents.

Of course, as one would expect with any major change, there will be those who embrace it fully and those who don’t. Whichever side of the fence you sit on, there is no doubt that these changes are set to have a radical effect on our Scottish system of justice. The original intention of the changes was to propel our courts into the modern era, embracing technology to the full and eliminating the waste of time and money that the current process entails. Ultimately, we can only wait and see how effective such measures will be.

By David Armstrong, partner, and 
Douglas McGregor, associate, Brodies LLP.