25 June 2015

New legislation and ministerial orders have been published in Scotland which breathe life into the root and branch reforms proposed by Scotland’s former senior judge Lord Gill in his 2009 review of the Scottish court system. Once in force they will provide a brand new framework for personal injury litigation in Scotland. They will create new rules governing injury claims and a new court in which those claims can be brought. Here we outline those changes and what they might mean for those involved in personal injury litigation in Scotland.

New limit for actions in the Sheriff Court

The Court of Session (Scotland’s version of the High Court) will no longer hear claims for less than £100,000. All claims below that level must be brought, at least initially, in one of Scotland’s various Sheriff Courts.

A brand new court for Scottish injury litigation

A recent ministerial order has created a novel, specialised court which will deal solely with personal injury claims for the whole of Scotland. It will be known as the Sheriff Personal Injury Court (SPIC) and will open for business on 22 September 2015. The SPIC will be based in Edinburgh but will have jurisdiction over the whole of Scotland.

The SPIC will have jurisdiction over actions for damages arising from personal injuries or the death of a person in which:

• the sum sought exceeds £5000 or;
• the proceedings concern a work accident for payment of a sum exceeding £1,000 or;
• a sheriff has certified that the importance or difficulty of the proceedings make it appropriate to transfer the proceedings to the SPIC.

Once the SPIC comes to life, pursuers (claimants) with actions meeting the above criteria will have the choice of bringing their claim in either their local Sheriff Court or at the SPIC.

Sheriff Court Rules and Procedure

A new set of rules for personal injuries actions have been created for the SPIC but also for all Sheriff Courts in Scotland. The key elements are as follows:

• Motions (court applications) can be made by email in the SPIC.
• A brand new Sheriff Court Case Management Procedure (modelled on similar procedure available in the Court of Session) for certain injury actions (clinical negligence, catastrophic injuries or otherwise complex cases) in the Sheriff Court with the following key features:
• A compulsory procedural hearing will be fixed after the parties have had a period of setting out their written cases.
• The procedural hearing will see the Sheriff determine further procedure in the case.
• At least 7 days prior to the procedural hearing, parties require to lodge written statements setting out proposals for further procedure. Where a proof (trial) is sought, they must also set out certain information including details of witnesses, witness statements, expert reports, medical records and the estimated length of the proof.
• A real expectation that parties will have engaged in a considerable amount of preparation and engagement with one another in advance of the hearing.
• Where a proof is sought, parties are expected to provide information on every aspect of the case, including the matters in dispute, the expert reports which they intend to rely on, the nature and extent of the dispute between the experts. Parties will be expected to have exchanged witness statements, make witnesses available to the other party, provide medical evidence to support a relevant case. Parties must be in a position to provide a reason for any significant disparity in their valuations of the claim. They should be able to estimate the duration of the proof, state their readiness for proof, and whether or not the proof can be restricted to certain issues.
• Where a proof is allowed, a pre-proof timetable is then issued by the Sheriff setting dates for a hearing, valuations, witness lists and productions, a pre-trial meeting and a further pre-proof hearing.
• Rules providing for Civil Jury Trials in the Sheriff Court (but only in the SPIC).
• For the first time, juries will determine personal injury claims in the Sheriff Court
• The rules essentially mirror the rules for jury trial already in place in the Court of Session
• Pre-trial conferences in the Sheriff Court are now to be known as pre-trial meetings (PTMs), in line with the Court of Session terminology.
• A requirement that PTMs be attended by parties in person or by video conference
• A party not in attendance must be available or have a representative available to give instructions to commit to settlement of action.
• Remit to the Court of Session for cases where the sheriff court has exclusive jurisdiction, i.e. actions for payment of £100,000 or less.
• A request for remit can be made by any party.
• There will be two stages to this process.
• First, if the sheriff considers the importance or difficulty of proceedings make it appropriate to do so, he may allow a remit request to the Court of Session.
• Once a remit request is lodged with the Court of Session, a hearing will take place before a judge who will decide whether the case should be remitted.
• The decision of the Sheriff and the Judge can be appealed

New Simple Court procedure

Next year will see the introduction of Simple Procedure for cases with a value of less than £5000. This is to replace the current system for summary cause and small claims actions. The provisions contained in the Court Reform (Scotland) Act 2014 suggest that the sheriff will be expected to take an interventionist approach to resolving such claims. This procedure can apply to personal injury claims under £5,000 (and therefore will capture most whiplash claims) but it specifically excludes “workplace –related actions” where the claim is worth over £1000. Accordingly, all Employer Liability claims will be subject to the sheriff court personal injury rules.

What will this mean for those involved in personal injury work?

Choice of forum

As noted above, pursuers will still have a choice as to where they raise personal injury proceedings. They may raise them in their local sheriff court. However, in doing so they give away their right to jury trial. Alternatively, if they wish the case to be dealt with by way of a jury trial, and/ or by a specialist personal injury sheriff, they can raise in the SPIC.

Any cases which involve a sum exceeding £100,000 may be raised in either the Sheriff Court or the Court of Session. Any case with a value under £100,000 must be raised in a Sheriff Court. A request for remit may be made, following the two-tier process set out above. No guidance has yet been given as to what circumstances may justify a remit from the Sheriff Court to the Court of Session but we anticipate that Court of Session judges will likely be stringent doorkeepers.

It remains to be seen as to whether pursuers will seek to raise actions in excess of £100,000 simply to bring them within the jurisdiction of the Court of Session. In actions where it is clear that the claim is not worth over £100,000, a motion can be made to remit the case to the Sheriff Court. The Court of Session can also, on its own motion, determine that a case should be sent away from the Court of Session and in to the Sheriff Court.

Essentially, almost all actions for damages for personal injuries with a value of £100,000 or less will proceed in the Sheriff Court under either the standard personal injury procedure or under the case management procedure.

Cost saving

The centralised SPIC may benefit parties on a number of grounds. By way of cost saving, it will avoid the need for solicitors to travel to the various sheriff courts throughout Scotland. bto have a number of Solicitors and Solicitor Advocates based in both their Edinburgh and Glasgow offices who specialise in personal injury and clinical negligence actions. Having the ability to conduct litigation in Edinburgh at all levels including the highest level will be an advantage for our clients, particularly compared with other legal firms who may not be in such a position to adapt to these changes.

A centralised court should also provide parties with a consistency of approach in the determination of cases by designated specialised sheriffs. It is to be hoped, once the inevitable teething problems have come and gone, that the breadth of expertise available from a specialised judiciary adjudicating over claims and experienced solicitors appearing in them should enable personal injury cases to be dealt with swiftly and efficiently.

Early preparation and front loading of costs

As will be obvious from our explanation above, the new case management will be extremely involved. The preparation of cases is clearly expected to be significantly front loaded. This will have an impact on defenders in particular. Defenders will require to be alert as to what is required by the rules and what the court will expect parties to have done at a very early stage of the action. A pursuer will have the advantage of being able to carry out investigations and obtain expert reports prior to raising the court action. Defenders may not. Given the potential timescales involved, a defender will be at a disadvantage if essential preparation has not been undertaken quickly and at an early stage.

It is possible that the procedural hearing could take place within 16 weeks of an action being raised and served. Given that timescale, experts will require to have been identified and instructed at the outset. Similarly, witnesses will require to have been located and statements taken to ascertain their evidence. If such matters are left until the court action is raised, defenders are likely to be unable to comply with the requirements demanded by the new rules.

Furthermore, given the requirements of this hearing, it is more likely than not that a Sheriff will expect the solicitors actually dealing with the case to be present, rather than a local agent or a solicitor unfamiliar with the case. Defenders will have to grow used to the expense of senior solicitors routinely spending time at court to deal with case management hearings.

PTMs

In addition, pre-trial meetings will require to be attended in person or through video conference. We have found the conduct of PTMs by way of video conference problematic with the gremlins inherent in attempting to marry incompatible IT systems across different law firms. As such, the likelihood is that solicitors will require to attend in person at each other’s offices or neutral locations which will all involve the additional expense of such attendance. Essentially, many of the additional expenses associated with Court of Session procedure will begin to appear in the Sheriff Court.

Change for the better?

As with any significant reform of established systems, many problems will be solved but others could be made worse. New opportunities will appear but unforeseen difficulties will emerge.

We will soon enjoy the benefit of a centralised court with specialised judges building up a body of common law and experience in personal injury actions. This should lead to consistency in approach and the efficient and effective disposal of personal injury claims. The new rules aim to streamline all personal injury actions and closely control the procedure which they follow. The majority of personal injury actions ought to qualify for sheriff court procedure, thereby reducing costs, both in terms of court fees, counsel’s fees and any costs payable to the successful party.

However, this will come, literally, at a price. For actions which follow the case management procedure, preparations will require to be heavily front-loaded. Defenders will require to be pro-active in obtaining their own evidence at an earlier stage and attempt to ensure they have instructed solicitors prior to litigation. This will almost certainly increase initial costs but, over the course of the case as a whole, earlier preparation could lead to earlier resolution and an overall reduction of the court costs. Parties may well see an increase in costs for the preparation of and attendance at procedural hearings and PTMs.

The implementation of the court reforms is finally taking place. These should be welcomed as their aim is to modernise and enhance the efficiency of the Scottish civil justice system. Initially there may be the usual teething problems, such as were experienced with the introduction of the personal injury procedure in the Court of Session. However, once that initial period is over and with the assistance of experienced specialised practitioners such as those at bto, these new procedures should enable the vast majority of cases to be disposed of swiftly, fairly and efficiently.