The Times They Are A Changing……..

22nd September 2015 sees the introduction of the first of some major changes to the civil court justice system in Scotland.  

This is the start of the changes stemming from a review by the recently retired Lord President Gill, which began in 2007, which recommended some sweeping alterations to the system.  The aims were around efficiency, lowered costs for those litigating and improved management of cases. The next few months will demonstrate if that is being achieved.

Some major changes will affect certain types of cases only, for example the introduction of a Scotland wide personal injury court, based in Edinburgh, with dedicated judges and new procedures available to it.

Other changes, however, directly affect commercial businesses and organisations. In particular, new time limits and requirements to obtain permission to raise certain court actions are introduced from today, and significant further changes will come into force over the next few months.

Any action with a value of more than £100,000 must now be raised in the Sheriff Court. Up until now, anything with a value of more than £5,000 could be raised in the Court of Session (though in practice, that would not happen often). Even if the claim is not for money, then it is still a claim for value if it is about determining rights in relation to property, so many of the orders sought in landlord and tenant disputes will be affected. The party raising the action is now required to state what the value of the claim is thought to be, and why, so some thought will be needed as to what the true value of the dispute is, even where, for example, the order sought is one declaring the continuing existence of a lease.

However, it is now possible to obtain an interim interdict (injunction) in a Sheriff Court in Scotland which will have effect across the whole of Scotland, rather than just in the Sheriffdom in which it was granted, which will be a useful provision for many businesses and should see costs kept down.

Big changes have also been introduced for applications for judicial review.   This is the supervisory jurisdiction of the Court of Session to examine the decisions of various bodies (usually public bodies) to consider whether the decision taken was within the power of the decision making body and appropriately made.   There has been significant growth in the numbers of these applications being made in recent years and steps are being introduced to ensure that applications are appropriate and brought fairly quickly.

Any judicial review application must now be brought within a maximum of three months of the decision which is the subject of complaint, though it is possible that time limits may be shorter in some cases, and longer if the court permits.

Additionally, a party seeking to make a judicial review application must have the permission of the court to do so. That will only be granted if a party has sufficient interest in the petition and the application has a “real prospect of success”.

More changes are imminent: the introduction of a Sheriff Appeal Court, and significant changes to the rights of appeal from Sheriff Court decisions will come in early 2016, along with a new “simple” procedure for small value claims, and wider rights for company directors or similar representatives to act for organisations, especially in smaller claims. Major changes to the expenses regime are also likely with the expected imminent publication of a Bill following a review of the rules on court expenses – that, hopefully, may improve the costs recovery of successful parties in commercial disputes.

These changes are intended to make the system more efficient, and it is worth remembering that courts’ own charges for lodging applications of various kinds, but especially for payment actions are considerably lower than in England & Wales. For example, a payment claim for £200,000 would require payment of a court fee of £210 in Scotland, but £10,000 in England & Wales (which might shortly rise to £20,000). If there is a basis to raise court action in Scotland, then that may well be worth consideration.

For further information, please contact Sheila Webster.

Disclaimer 
The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.