1. Civil justice and court reform
In Scotland, civil law cases are usually conducted in a sheriff court or the Court of Session. Some cases are also heard in tribunals (section 1.1.3).
This chapter examines the procedures used in civil law in the Court of Session and sheriff courts (Figure 2). It then details recent reforms of these procedures, and the effects these reforms are likely to have on court business (1.2). Finally we examine the evidence from courts data of the effect of these phased reforms (1.3).
Our findings suggest that:
- A significant amount of business has moved out of the Court of Session, which saw initiated cases decreasing by 48% since 2015-16.
- The new specialised Sheriff Personal Injury Court now handles over a third of personal injury cases in Scotland.
- the new simple procedure has now effectively replaced the small claims procedure in sheriff courts, along with more straightforward summary cause cases.
1.1 Structures and procedures in civil courts
Figure 2 shows the current court structure and procedures, detailed in the following sections.
Figure 2: Summary of court structure
1.1.1 Sheriff court procedures
Civil law cases initiated in the sheriff courts can be pursued in one of five procedures:
Small claims - These were intended to be a relatively informal procedure for cases involving any monetary claim up to £3,000. Cases carried out using this procedure may be heard only in the sheriff courts. Small claims have largely been replaced by the simple procedure except for a small number of EU cases.
Summary cause - This procedure is used where the case involves any monetary claim over £3,000 and up to £5,000. It is also used for the recovery of rented property, for the recovery of moveable property and for personal injury cases up to £5,000. Cases carried out using this procedure may be heard only in the sheriff courts at first instance. Simple procedure (phase one) has replaced actions relating to payment, delivery or for recovery of possession of moveable property and actions which order someone to do something specific.
Summary application - This is a less commonly used procedure, designed to be quick and informal. It is generally used for statutory applications (in other words, processes set out in legislation). For example, appeals from decisions of licensing boards are heard under summary application. Actions for the repossession of homes because of mortgage arrears also take place under summary application.
Simple procedure - This was introduced by the Courts Reform (Scotland) Act 2014, amalgamating small claims actions and summary cause in the sheriff courts beginning from 28 November 2016. Simple procedure (phase one) only covers the most straightforward summary causes, procedures for more complex cases will follow in due course. Similar to the procedures it replaced, the simple procedure applies to cases with a value up to £5,000.
Ordinary cause - This procedure is used where the case involves any monetary claim over £5,000, for cases involving family disputes and for many other cases where more complex legal issues arise. Cases carried out using this procedure may be heard in the sheriff courts or the Court of Session. Since 22 September 2015, cases up to a value of £100,000 are within the exclusive competence of the sheriff courts, as set out by the Courts Reform (Scotland) Act 2014.
Since January 2016, appeals of civil cases which have been disposed of in the sheriff courts (whether by summary sheriffs or sheriffs) go to the Sheriff Appeal Court(Civil), except in some specialised pieces of legislation where direct appeal may be made to the Inner House of the Court of Session.
1.1.2 Court of Session procedures
The Court of Session is the highest civil court in Scotland. Cases before the Court of Session are normally initiated in one of two departments:
General Department - deals mainly with cases where one person wants to enforce a legal right against another. The General Department deals with a variety of case types including: personal injury, family, damages, interdict, intellectual property, debt and commercial.
Petition Department - deals with cases where the authority of the court is sought to deal with a variety of legal issues, other than disputes between people or organisations.
Cases are heard either in the Outer House or the Inner House. The Outer House is where the majority of cases are first heard. In this court, single judges normally preside over cases. The Inner House deals primarily with appeals, although it does hear a small amount of first instance business. At least three judges sit to hear cases in the Inner House, except where the business is procedural in nature when a single judge may sit for most classes of appeal.
Appeals from the Outer House, known as reclaiming motions, are made to the Inner House (which also hears certain appeals from the Sheriff Appeal Court and certain tribunals and other bodies). Judgments of the Inner House of the Court of Session can be appealed to the Supreme Court of the United Kingdom.
1.1.3 Specialist courts and tribunals
A number of specialist civil courts and tribunals also operate in Scotland. Examples of specialist courts include the Scottish Land Court, which deals with agricultural and crofting matters, and the Lands Valuation Appeal Court, which deals with rateable value issues. Appeal from specialist courts is usually to the Inner House of the Court of Session.
Some tribunals in Scotland, such as the Mental Health Tribunal for Scotland, operate in areas of devolved competence and are administered by the Scottish Courts and Tribunals Service (SCTS). SCTS also provide support for the wide range of tribunals that are part of the Scottish Tribunals (see section on their website).
There are also a number of tribunals in Scotland which deal with areas of reserved competence - for example social security tribunals and the Employment Tribunal. These are currently administered by Her Majesty's Courts and Tribunals Service.
The Scotland Act 2016 put in place arrangements to devolve the administration of reserved tribunals to the Scottish Parliament. This will be done on a case-by-case basis using secondary legislation. The UK Parliament will retain responsibility for legislating for the subject matter of these tribunals.
Statistics on specialist courts and tribunals are not included in this bulletin. Further information can be found in those courts and tribunals' annual reports (Mental Health Tribunal for Scotland annual reports, Scottish Land Court reported decisions and Lands Tribunal for Scotland).
1.2 Court reforms and expectations
In October 2014, the Courts Reform (Scotland) Act 2014 was passed by the Scottish Parliament and received Royal Assent in November 2014. The reforms aim to address existing inefficiencies and bring about a cost-efficient, effective and accessible civil justice system for all individuals. Key reforms introduced by the Act, their date of implementation and expected indicators of their effects are listed in the remainder of this section.
The changes outlined in this section are not an exhaustive list of changes introduced by the Act. Transitional arrangements apply to all of the reforms described. More information on the Act can be found on the Scottish Courts and Tribunals Service website.
The expected effects of these reforms are listed in bullet form, like this. In section 1.3 we examine the data to determine if these changes have taken place.
1.2.1 Courts and procedures
Exclusive Competence of Sheriff Courts
From 22nd September 2015
The exclusive competence for all sheriff courts has been extended. Before the Act, only actions with a value of up to £5,000 could be raised in the sheriff courts, while cases above that value were eligible to be heard in the Court of Session. This has now changed, and actions with a value of up to £100,000 fall within the exclusive competence of the sheriff courts, while cases above this value will usually be raised in the Court of Session.
This should lead to a reduction in volume of cases being handled by the Court of Session in favour of cheaper, simpler proceedings at the sheriff courts.
Sheriff Personal Injury Court
From 22nd September 2015
Litigants can choose to raise actions pertaining to personal injury valued up to £100,000 either in their local sheriff court or in the national personal injury court in Edinburgh. For higher value actions, a pursuer (claimant) has the choice of these forums and also the Court of Session. The Sheriff Personal Injury Court was established to increase efficiency and reduce settlement times of cases.
This should lead to a reduction in volume of personal injury cases being handled by both the Court of Session and traditional sheriff courts.
From 1st April 2016
Summary sheriffs were created and they have a more limited jurisdiction than existing sheriffs, they are limited to dealing with cases of less than £5,000. Summary sheriffs are able to deal with the following proceedings: family; domestic abuse; adoption; children's hearings; forced marriage; warrants and interim orders; diligence proceedings; extension of time to pay debts and simple procedure.
Simple procedure (phase one)
From 28th November 2016
This procedure replaced the small claims and the more straightforward summary cause procedures, applying to cases with a value less than £5,000. Simple procedure has been designed to be efficient, inexpensive and informal, so that parties can represent themselves. It is mainly dealt with by the new summary sheriffs.
Simple procedure (phase one) only replaced summary cause actions relating to payment, delivery or for recovery of possession of moveable property, and actions which order someone to do something specific. A second phase of simple procedure is expected to follow in due course, covering certain types of actions not covered by the first phase such as personal injury cases.
This reform should reduce the time and costs of pursuing simpler cases through the courts.
1.2.2 Judicial Review
From 22nd September 2015
Reforms introduced require an application for raising proceedings to be made within a three month time limit. Applicants must also seek permission from the Court of Session to proceed under the new procedure for review.
We would expect this reform to reduce the number of reviews resulting in a hearing.
Appeals from Court of Session to the UK Supreme Court
From 22nd September 2015
Permission from Court of Session judges is now required before cases can reach the UK's Supreme Court. This means any party wishing to overturn a decision from the Inner House of the Court of Session must seek permission beforehand. If the Inner House refuses, the party can seek permission from the Supreme Court directly. In effect, the changes mean appeals from Scotland to the Supreme Court are now subject to the same rules as appeals from other parts of the UK.
This should reduce the volume of appeals from the Court of Session going to the UK Supreme Court.
Sheriff Appeal Court (Civil)
From 1st January 2016
The Sheriff Appeal Court was established to ensure cases are dealt with at an appropriate level and prevent unmeritorious claims from reaching the higher courts. The court is presided over by Appeal Sheriffs, and led to the previous Sheriff Principal role of adjudicating on appeals against decisions of sheriffs being abolished.
The effect of the reforms removes the ability to appeal directly from the sheriff court to the Court of Session, and provides a mechanism for appeal within the sheriff court system.
This should reduce the volume of appeals from the sheriff courts heard in the Court of Session.
1.3 Recent trends of civil law court cases
Between 2008-09 and 2012-13, the number of cases initiated in the sheriff courts fell by 43% (excluding summary applications) (Table 1 & Figure 3). Cases in the Court of Session saw a more fluctuating trend.
From 2012-13 to 2015-16, the total number of initiated cases across all courts were stable at around 77,000 until a decrease of 5% to 73,600 in 2016-17.
The total number of civil cases initiated in the courts increased in 2017-18 for only the second time in 10 years, up 10% on the total for 2016-17 (the other increase having been 1% in 2015-16). Increases in case numbers were observed across all case types except family which saw a 5% decrease (see section 2.2 for more information).
One of the main reasons for the increase in initiations in 2017-18 is debt actions, which have been brought under the new simple procedure (Table 11). Their relative ease of this procedure may have led to a rise in interest from the public.
In the following sections we examine these trends further in the context of the reforms of civil courts proceedings discussed in section 1.2.
Figure 3: Cases transfer to Sheriff Personal Injury and simple procedure
1.3.1 Courts and procedures
In 2017-18, 75,623 cases were initiated in the sheriff courts and 63,994 were disposed. This represents an 11% increase in initiations and a 3% increase in disposals on the previous year (Table 3).
However, this increase was not observed across all procedures in the sheriff courts. The numbers of ordinary cause procedures remained approximately the same (a 0.2% reduction), while summary cause procedure initiations fell by around 11%. Small claims procedures were almost entirely replaced in 2017-18 by the new simple procedure. (The remaining few cases relate to EU small claims cases.)
The phase one roll-out of simple procedure is now complete, with the first full year of data available for this report. 34,914 simple procedure cases were initiated in 2017-18, and 29,897 were disposed of.
The simple procedure appears to have absorbed almost all small claims and summary cause cases for debt and damages actions (Table 11 and Table 18), while also increasing the overall case load at sheriff courts. This could indicate that there is an increase in access as a result of the new procedure, which was designed to be informal and allow for self-representation. This trend is likely to continue as simple procedure enters phase two in due course, and absorb more complex types of action currently initiated under summary cause.
A further 3,282 cases were initiated in the national Sheriff Personal Injury Court, an 11% increase on 2016-17 (Table 17). Based on the available data from 2015-16 onwards, many of the cases pursued in the Sheriff Personal Injury Court would likely have been initiated at the Court of Session, which has seen a corresponding fall in the number of cases initiated since the institution of the new court (Table 1).
As a result, while business levels have increased by 10% across all courts, the number of cases initiated at the Court of Session is around the same as 2016-17 at 2,279 (a 1% increase in cases).
Combined, the new simple procedure and Sheriff Personal Injury Court accounted for 47% of all civil court business.
Civil justice problems being dealt with by simpler procedures should result in reduced time associated with resolving these problems. We cannot currently confirm this to be the case, but we will provide updates to that effect in future bulletins when data become available. The relative costs of these procedures is provided on the Scottish Courts and Tribunal Service website.
1.3.2 Judicial Review
The Court of Session deals with judicial review. This is a specialised type of court procedure that can be used to challenge the way a person or body with power or authority has made a decision.
Reforms to this procedure might have been expected to reduce the number of reviews but this is not immediately evident in the statistics (Table 24). The only effect so far has been a jump in reviews ahead of the rules changing in September 2015.
There were 357 judicial review cases initiated in 2017-18, a small (4%) increase on 2016-17. Between 2015-16 and 2016-17 there was a large decrease, explained in part due to a rise in number of judicial reviews in the preceding year, ahead of the reform.
The number of judicial reviews initiated at the Petition Department of the Court of Session has been highly variable over time. It is not clear yet if the new procedure will reduce the overall volume of such cases being initiated in the longer term.
Sheriff Appeal Court (Civil)
2017-18 is the second full year of operation in the Sheriff Appeal Court (Civil), which began in January 2016. In 2017-18, 286 cases were initiated and 235 disposed of (Table 25).
In the previous year, the same number of cases were initiated (286) as in 2017-18, but only 169 disposed of. This improved initiation/disposal ratio may imply improved efficiency as a result of new procedures bedding in at the Sheriff Appeal Court.
Prior to January 2016, appeals would have been directed to the Court of Session thereby entailing higher costs and possibly longer duration for determination. There has been a decrease in the appeals made from the sheriff courts, but numbers are small: for the last five years there were 46, 53, 42, 18 and 31 respectively. The last two years correspond to when the Sheriff Appeal Court operated for full financial years.
Appeals from Court of Session to the UK Supreme Court
In 2017-18, 20 civil law applications were initiated under the provisions for bringing appeals to the UK Supreme Court (Table 26). During this period, 25 applications were disposed of by the Inner House of the Court of Session (two granted and 23 refused).
In 2017-18, of the 17 cases disposed of by the Supreme Court for permission to appeal (having been initially refused by the Inner House in Scotland), one was granted and the rest were refused.