Gordon Dalyell explores the implications of the Courts Reform (Scotland) Act.
On 7 October, the Scottish Parliament passed the Courts Reform (Scotland) Act. This was a Bill long in gestation, given the genesis of much contained within the Bill came from the recommendations of the Gill Review of 2009. The passage of the Bill through the Scottish Parliament was, however, remarkably swift. The Bill was introduced in February 2014, evidence taken for stage 1 purposes by the middle of May, amendments dealt with by June, and at one point it looked as if the whole process may be completed by the summer recess. The independence referendum, however, got in the way and stage 3 was completed in October.
The Act will see significant changes to how civil business is conducted in the Scottish courts. The new exclusive competence limit of £100,000, down from the original proposal of £150,000, will lead to the vast bulk of cases, particularly personal injury cases, being dealt with in the sheriff court, rather than the Court of Session. The introduction of a specialist personal injury court, probably in Edinburgh, with specialist sheriffs will allow cases to be dealt with in a specialised forum. Even cases with a value of under £5000 will be capable of being raised in the specialist court though the precise rules governing these cases are still awaited.
However the elephant in the room is resource. Put simply, there will be little, if any, new money to fund these changes. The financial memorandum accompanying the draft Bill made a number of assumptions and assertions about the costs savings. Any detailed analysis of the financial projections immediately produced serious questions about how the figures will stack up. A significant extent of the projected savings is assumed to come from judicial salaries as cases will be dealt with by sheriffs and not judges. However, there is no sign of the number of judges being reduced in the short to medium term. The big lacuna relates to court fees. These are lower in the sheriff court than the Court of Session. Currently, the Court of Session takes in around £2 million a year from personal injury court fees alone. That is around 50 per cent of its total fee income. The proposed changes will lead to a shortfall of just over £1 million a year. This was not acknowledged by the Government in its original memorandum, nor adequately addressed when it was brought to their attention. Similar concerns about so-called savings from the legal aid budget were brushed aside. The Finance Committee of the Scottish Parliament produced a hard hitting critical report which was effectively ignored by the Cabinet Secretary for Justice.
The sheriff courts are already creaking at the seams. The closure of a number of sheriff courts has led to strain on capacity of those courts which require to deal with the influx of the transferred business. The transfer of criminal work from the High Court to the sheriff court is having an impact and will only create more pressure, and this will especially be the case in the event that the proposed corroboration reforms proceed.
The new specialist PI court will only have two sheriffs. It is likely that over 2,000 cases a year will proceed through this court. Many APIL members are concerned that the specialist court and other sheriff courts will simply not cope with the volume of work.
The aims of the Act are laudable, but will only succeed if proper resourcing is provided.