The passing of the Court Reform (Scotland) Bill has signalled the inevitable sea-change of the court system in Scotland.
The Bill largely implements the recommendations of Lord Gill’s review which was published in 2009 barring a few amendments. Despite the passage of five years from ‘Gill’ to ‘Bill’, civil litigators are no further forward in knowing how this will actually work in practice.
This is of particular importance for personal injury lawyers and the accident victims they represent throughout the country. One of the most controversial aspects of the Bill is the increase on the limit of private jurisdiction from £5,000 to £100,000 which will all but empty the Court of Session of personal injury cases. A significant rise in the limit was widely expected with many in the profession proposing an increase to £50,000 the appropriate compromise. However, the agenda of the Justice Secretary and the judiciary have prevailed over the rights of the ordinary citizen.
Presently, personal injury cases make up just under 80 per cent of business in the Court of Session and within that number the vast majority fall under the new £100,000 limit. the Bill will significantly reduce the volume of cases raised in the Court of Session and will mean that current expertise of counsel will no longer be automatically available to accident victims. This creates an inequality of arms as insurers will be able to continue to use their deep pockets to fund counsel in cases the Bill provides for establishing a specialist personal injury court but even now, we are still in the dark over its mechanics. We don’t know where this will be located, who the specialist sheriffs will be that preside over it, although we do know they won’t have the expertise of the Court of Session judiciary.
Neither do we know how it will deal with the estimated 2000 cases it will require to process each year – this figure is based on 80 per cent of the current 2500 Court of Session cases being reallocated to this specialist court. We also don’t know what, if any savings on time or expense will be achieved from this Bill. It may actually mean that access to justice may in fact become a slower process under the proposals.
Also, we have to ask, who benefits from these cost savings? It won’t be the ordinary consumer in the main. Most likely it will be insurance companies and we already know how reluctant they are at passing savings on to their customers.
Overall, the Bill’s passing does little to enlighten us on what the path to justice for accident victims will be in the future and these are the very people who need a system to support them when they are at their most vulnerable.
• Scott Whyte is Managing Director of Watermans Solicitors