Taken together, two separate plans to restructure the court system in Scotland with the aim of making it more efficient are in danger of achieving exactly the opposite.
The draft Courts Reform (Scotland) Bill will raise the threshold for civil actions at the Court of Session from £5000 to £150,000, with all those worth less being heard in the sheriff courts. The reform is intended to reduce both costs and time but has prompted fears that the sheriff courts will experience a deluge of civil cases leading to delays.
At any time that would cause concern but the problem is exacerbated by separate proposals to close 10 sheriff courts across the country. That constitutes one-fifth of the total, concentrating the workload in larger towns and cities.
There is general support for reform of the civil courts but concern about the £150,000 threshold: research by the Law Society of Scotland shows that only 2% of Court of Session business is settled above that value.
However, there is considerable anxiety about the negative effects of the sheriff court closures. Witnesses, defendants and staff will have to travel longer distances at additional expense and difficulty. Businesses in the towns affected, from Kirkcudbright to Dornoch, have pointed out that being a centre for law and justice brings additional custom and helps retain jobs.
It must also be recognised that removing the court may mean that cases are no longer reported in the local press with the effect that justice will no longer be seen to be done.
Although presented as a means of modernising the sheriff courts, the closure plan, which includes seven justice of the peace courts, is a means of meeting a 20% real-terms cut to the Scottish Court Services budget. One of the aims of the reform of the civil courts is to reduce the length of time involved in the legal process but it will have the reverse effect if a queue at the Court of Session becomes a bottleneck at the sheriff court.
More fundamental is the question of how raising the threshold to £150,000 for cases in the Court of Session affects access to justice. In the Court of Session, the claimant is entitled to instruct an advocate (sometimes on a no-win, no-fee basis) and therefore has equality before the law with commercial companies or public bodies who can afford the best advocates.
Under the new system, claimants in cases worth less than £150,000 would have no automatic right to instruct an advocate, while the defenders of a claim would usually have the resources to do so. Such a serious disadvantage to ordinary people with serious claims requires the proposals to be re-examined. The suggestion by the Law Society that the limit should be set at £50,000 (the threshold that operates in England) should be considered.
Civil law reform is necessary but the effect of sheriff court closures must be heeded to avoid damaging unintended consequences and to safeguard the principle of equality before the law.
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