Date:

Civil Court Reform – What Does It Mean For You?

The Scottish Civil Court Reform has begun, with changes coming into effect from 22 September 2015.

The first tranche of changes under the Civil Court (Scotland) Act 2014 (the “2014 Act”) are now in force. The 2014 Act is designed to reshape the civil court process in Scotland and implement changes identified and recommended in Lord Gill’s 2009 Court Review.

The 2014 Act is coming into force in trances: the first was implemented on 22 September 2015 and the second tranche is due to take effect from January 2016. Some of the most significant points for commercial users of the Court are as follows:

Actions valued at under £100,000

If the value of the dispute is less than £100,000, the action must now be raised in the Sheriff Court: it can no longer be raised in the Court of Session. A case will only be transferred from the Sheriff Court to the Court of Session If the Sheriff thinks it appropriate to do so and the Court of Session agree to accept the case. The motivation behind these changes is to increase access to justice and lower the cost of litigation.

Actions valued at £100,000 and over

Any action valued at £1,000 and over can still be raised in either the Sheriff Court or the Court of Session. There are remit powers between the two Courts.

Orders to perform a specific act

Prior to the 2014 Act, there was some uncertainty as to whether the Sheriff Court had power to grant orders obliging a party to perform a particular act (known as orders ad factum praestandum). The 2014 Act removes that uncertainty and clarifies that the Sheriff does have that power. Proceeding in the Sheriff Court has certain cost advantages and can be a more cost effective way of progressing litigation.

Judicial Review

Judicial review is the process by which the Court reviews the lawfulness of a decision or action of a public body.The 2014 Act introduces a three month time limit for raising judicial review proceedings but the Court can allow an application to proceed outwith that period if it thinks it appropriate to do so in the circumstances of the case. The 2014 Act also brings in a new requirement for the person seeking review to obtain permission from the Court for the judicial review to proceed. The Court will now only allow a judicial review to proceed if it is satisfied that (a) the applicant can demonstrate ‘sufficient interest’ in the matter and (b) that the application has a ‘real prospect of success’. If the applicant fails to satisfy the court of these points, the case will not go any further.

Reduction

The Sheriff Court now has the ability to determine certain actions for reduction. Previously, the Court of Session had exclusive jurisdiction over these actions but the 2014 Act enables a party to seek reduction of a document, such as a disposition or contract, in the Sheriff Court. The Sheriff Court still cannot, however, reduce a court decree and actions of that nature must be raised in the Court of Session.

The changes implemented in September 2015 see a general increase in the powers of the Sheriff Court and provide the Sheriff Court with exclusive competence over actions which previously may have been raised in the Court of Session. Supporters of the reform argue that these changes increase access to justice and lower the cost of litigation. This, of course, is positive consideration good news to those contemplating legal proceedings, who now have increased opportunity to proceed in the Sheriff Court, where litigation can be progressed by solicitors and costs tend to be lower.

The increase in Sheriff Court powers opens up new options to those contemplating litigation. It enables a greater number of actions to be raised in the Sheriff Court, where cost of litigation generally tends to be lower. This, of course, is good news to those who are contemplating litigation but are mindful of the costs.

Author - Emma Forrester

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Kenneth Campbell

Associate

As a commercial litigation specialist I regularly appear in Sheriff Courts around Scotland as well as conducting actions in the Court of Session.