When the Scottish Government published The Court Reform (Scotland) Bill, civil litigators and, in particular, personal injury lawyers might have thought the four years of uncertainty following Lord Gill's 2009 review of the civil courts in Scotland was at last at an end.
This is far from the case, with the reforms proposed in the Bill likely to exacerbate the long delays they were designed to eliminate. Furthermore, even though both Lord Gill and Justice Secretary Kenny MacAskill have provided evidence to the Scottish Government on the Bill, frustratingly we are no further forward in getting any detail on exactly how a specialist injury court will function and where the expertise will come from.
It is also disappointing to see that, despite a lengthy consultation process, little regard has been paid to the genuine concerns raised by the legal profession on the effect and implementation of the changes.
The two most controversial proposals in the Bill are the intention to raise the limit of private jurisdiction in the Court of Session from £5000 to £150,000 and to establish a Specialist Personal Injury Court for Scotland.
The proposed increase on the limit of private jurisdiction to £150,000 represents a 3000% increase and will all but empty the Court of Session of personal injury business when it comes into force.
A significant rise in the limit was widely expected, with responses to the consultation process seeking a figure in the region of £50,000. It would appear the concerns raised by the profession about the £150,000 limit have been largely ignored by both the Scottish Government and Mr MacAskill.
At present, personal injury cases make up just less than 80% of business in the Court of Session and, within that number, the vast majority fall under the new £150,000 limit. This will significantly decrease the volume of cases raised in the Court of Session and will mean the current expertise in dealing with such cases will no longer be available in the vast majority of cases. People have traditionally gone to the Court of Session because they have more chance of accessing justice in what can be quite complex and protracted cases than in the Sheriff Court.
We are still in the dark as to where the Government's proposed "specialist" court would be located and, more importantly, where it intends to find the two "specialist" sheriffs who will preside over these cases. Who would want the job of sheriff knowing that they are earning significantly less than the Court of Session judges who have just waved off the majority of their current workload?
The sheriffs will be expected to absorb the majority of the annual personal injury caseload of the Court of Session, about 2500 cases a year at present handled by a well-stocked and well experienced Court of Session bench. This will lead to the very delays the Bill seeks to eliminate.
The Scottish Government maintains that its reforms will result in only about 3% of cases being switched between the two but we believe this is vastly underestimated. Even if proved correct, we are not convinced there will be adequate resources in place to handle those numbers.
These are all questions that must be answered if this Bill is to be given any mileage at all. Worryingly, these are questions that have been asked since 2009 and we still seem no closer to the answers.
It would appear that the four years between the Gill Review and the Bill have been something of a waste of time. More questions than answers remain as to how it will achieve its lofty objective of seeking to "modernise and enhance the efficiency of the Scottish justice system".
This should be of significant concern to practitioners on all sides in the personal injury sector and, more importantly, to accident victims. Overall, this Bill is a missed an opportunity to give us a system that works as it should, delivering justice for all on an equitable basis.
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