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All change north of the border

All change north of the border


Almost a year after the introduction of the Courts Reform (Scotland) Act 2014, Stephen Hill considers the transformation of the Scottish civil justice landscape

The All-Scotland Sheriff Court opened its doors for business last September and established

a national jurisdiction for personal injury actions. For the first time, a pursuer now has the choice of raising proceedings in their local Sheriff Court or the All-Scotland Sheriff Court. One of the main innovations of the new court is the introduction

of an e-motion system similar

to that which has been used

in the Court of Session for a number of years.

The new court also paves the way for civil jury trials, although this feature remains largely untested. It is fair to say that

the court has witnessed an unprecedented volume of business since it came into being almost one year ago. After a shaky start, the court now seems to be going from strength to strength, which can only be good news for practitioners and service users.

Sheriff Appeal Court

The scope of the new Sheriff Appeal Court was originally restricted to criminal matters. However, the court's civil jurisdiction came into effect on

1 January 2016 and abolishes the traditional route of appeal from the Sheriff Court to the sheriff principal. Civil appeals will now proceed before a bench of three appeal sheriffs whose decisions are binding throughout Scotland. However, appeals

from summary cause and small claims actions may be heard

by a single appeal sheriff.

The new structure significantly curtails the almost unfettered right of appeal to the Inner House of the Court of Session and has been designed to improve consistency and efficiency. Direct appeals from the Sheriff Court to the Court

of Session are still possible,

but shall only be permitted in circumstances which raise a novel or complex point of law.

Simple procedure

Scottish civil litigation will embark on another new chapter with the anticipated arrival of the new Simple Procedure Rules on 28 November 2016. Simple procedure has been heralded

as an inexpensive, accessible, and user-friendly system which can be used by lawyers and laypeople alike. By mid-2017,

it is hoped that 60 per cent of

all civil business in the Sheriff Courts will be processed online.

Initially, the new rules will

only apply to certain types of proceedings, such as payment actions up to a maximum

value of £5,000. However, the Scottish Civil Justice Council plans to extend the scope of simple procedure next year to include housing and personal injury claims.

The new rules mark a bold departure from the status quo and represent a leap into the unknown. Only time will tell whether the new system delivers on its promises and is embraced by the profession and general public alike.

Compulsory protocol

Scottish pre-litigation claims handling will shortly become more aligned with the procedure adopted in England and Wales with the imminent introduction of a new compulsory pre-action protocol. The protocol is expected to come into force on 28 November 2016 and will apply to all personal injury claims up to £25,000. Claims involving alleged professional or clinical negligence are not covered.

The compulsory protocol is closely modelled on the existing voluntary protocol but will implement some key changes. Under the compulsory protocol, defenders must put forward a settlement proposal within five weeks of receiving the pursuer's valuation. In turn, a pursuer must accept or provide a reasoned response to any settlement proposal within 14 days.

All damages payments must

be made within five weeks

of settlement being agreed.

The protocol makes it clear

that cooperation is expected between the parties.

To discourage premature litigation, pursuers will only be permitted to raise proceedings in a limited range of circumstances. The courts will be able to impose penalties for non-compliance depending on the nature and severity of the breach. The available sanctions include an award of expenses being made against an offending party. The Scottish civil justice system has undergone a major transformation over the last couple of years, and following the publication of the Taylor Review in September 2013, there is no indication of things settling down. The introduction of a qualified one-way costs shifting regime in Scotland is one of many further changes looming on the horizon.

Stephen Hill is a solicitor at Kennedys Scotland @KennedysLaw