LAST week, the Scottish Government published its consultation on the Civil Courts Review.
You published an editorial comment that concluded that "the reforms will succeed only if the rights of the individual remain paramount" ("In principle, a welcome reform of our civil courts", The Herald, February 28). I agree.
However, the proposal is not to "raise the ceiling" for claims to be heard in the sheriff court rather than the Court of Session from £5000 to £150,000. Rather, it is to prevent people from bringing claims in the Court of Session unless they are worth more than £150,000. The distinction matters.
The result would be to deprive many Scots of access to their national court and compel the transfer of a high proportion of cases from the Court of Session to the sheriff courts around the country.
The change in the value of case allowed in the Court of Session from £5000 to £150,000 represents a 3000% increase. That is extreme, disproportionate and unjustified. By way of useful comparison, the equivalent figure in Northern Ireland is £15,000, and in England and Wales £50,000.
Consider why it is that so many Scots choose to bring proceedings in the Court of Session. It is in part because that court has developed procedures appropriate for particular types of cases, including special rules (which are universally acknowledged to operate very effectively) for personal injury cases and a highly regarded commercial court. The proposal will remove that choice from the vast majority of litigants.
In the Court of Session, the claimant is automatically entitled to instruct an advocate and to benefit from the quality of representation that advocate provides. That right ensures equality before the law – it is not just the "big battalions" who can instruct the best advocates. In personal injury actions raised in the Court of Session the claimant is often represented by an advocate who is willing to act on a "no win, no fee" basis. In such a case, the claimant receives high-quality representation effectively free of charge.
Under the Scottish Government's proposals, such a claimant would be effectively deprived of the right to instruct an advocate unless the case is worth more than £150,000 or is classed as "exceptional". Defenders representing those with vastly greater resources would, no doubt, continue to instruct the best representation available. The effect of this proposal, if enacted, would be to create blatant inequality before the law and to disadvantage ordinary people with serious claims. That is contrary to a basic Scottish sense of fair play.
There is much in the consultation that is welcome. The Faculty of Advocates will work with the Scottish Government to achieve our shared goal of a civil justice system which secures access to justice and equality of representation before the courts for all.
But any such system must have at its core two elements worryingly absent from the proposals – access to the Court of Session at a fraction of the proposed £150,000 minimum, and a level playing field for legal representation.
Richard Keen QC,
Dean of the Faculty of Advocates,
Advocates Library,
Parliament House,
Edinburgh.
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