CHAPTER 1 Moving civil business from the Court of Session to the sheriff courts

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1 INTRODUCTION CONSULTATION QUESTIONS As a firm, Digby Brown continue to practice almost exclusively in the area of pursuer personal injury (including clinical negligence), and we therefore propose to concentrate on those matters in terms of our response. We remain strongly of the view that civil justice cannot be viewed as a single entity. Each area has its own distinct features and measures which may be appropriate in one area may not apply across the board as regards to civil matters. CHAPTER 1 Moving civil business from the Court of Session to the sheriff courts Q1. Do you agree that the provisions in the Bill raising the exclusive competence and providing powers of remit will help achieve the aim of ensuring that cases are heard at the appropriate level? In our response (2009) to the Scottish Civil Courts Review Consultation Paper, we outlined in some detail why we considered that the Coulsfield reforms (leading to the introduction of Chapter 43 Personal Injury Procedure in the Court of Session) were working well in the context of personal injury litigation. We were able to demonstrate (using a significant sample size) from data of the firm s cases that there had been a dramatic acceleration of the speed of settlement of cases post-litigation following the introduction of Chapter 43 procedure, supporting our experience that agents and counsel become involved and worked towards early settlement at realistic levels. Our experience was that the majority of cases settled well before the pre-trial meeting and that the majority of cases which proceed to a pre-trial meeting tended to settle shortly thereafter. In the great majority of cases there was little or no judicial time involved. Although the number of Proofs allocated each week had increased from the position pre-coulsfield, only a very small percentage of personal injury actions in the Court of Session proceed to Proof or Trial. We argued that the Coulsfield rules had enhanced the Court of Session s position as a centre of excellence for personal injury work, providing an effective framework within which specialist Counsel and agents were able to resolve a large volume of cases speedily and efficiently. We had also observed that the speedier settlement of litigated cases has resulted in a significant reduction in judicial expenses. Our statistics demonstrated that the success rate in litigated cases is in excess of 99.5%. In the face of a policy adopted by many insurers of deliberately seeking to under-settle claims pre-litigation, we argued that the existing system in the Court of Session operates extremely effectively and efficiently in permitting access to justice for injured persons. Where the principal remit of the Civil Justice Review was to improve access to justice in Scotland, we argued that the current arrangement in the Court of Session should be seen as a centre of excellence which achieves that

2 and was not in need of reform. Moreover, we observed that the Court of Session is widely regarded as a centre of excellence in relation to personal injury cases. It produces high quality and consistent decisions, and has promulgated a body of case law in relation to personal injury matters which is highly regarded and frequently referred to with approval throughout the UK Courts. Should a case require to go to proof, the Court of Session is able to provide consecutive days for the hearing, in contrast to the position in almost all sheriff courts. Our experience was of widely varying levels of consistency of decision making and experience of personal injury matters within the shrieval system, and had argued that that any significant transfer of personal injury business to the Sheriff Court should be deferred until such time as the shrieval system has the resources to cope with this additional work without any consequent reduction in levels of service. In light of the above and in summary, we argued that the Court of Session should retain first instance jurisdiction in relation to personal injury actions. We remain largely unaltered in our view today. We are not persuaded that the proposal in the Courts Reform Bill in raising the privative jurisdiction level to cases for a monetary value of higher than 150,000 will do anything to improve access to justice in Scotland for injured persons. The outcome of such a move will be a significant shift of most personal injury business from the Court of Session to the Sheriff Court. In selecting such a high monetary figure, the reality is that many claimants with serious and significant personal injury cases involving, for example, future loss claims; complex injury cases with a number of expert medical and technical reports; claims for family members following fatalities etc. will be excluded from bringing their case in the Court of Session. We do not see any compelling case for barring such persons from asserting their rights in the highest civil Court, yet permitting a straightforward commercial debt action of 155,000 to proceed in that forum. The proposed figure is far in excess of the equivalent position in England/Wales and rthern Ireland. Moreover, we would observe that there is no correlation between the value of a claim and its complexity or novelty in law. Cases of relatively modest monetary value in the personal injury sphere can involve detailed consideration of complex statutory provisions or medical complexity. It would seem undesirable to prohibit certain personal injury cases from being heard in the Court of Session solely on the basis of their likely monetary value where that would deprive personal injury claimants (and the wider profession) to the quality and consistency of decision making in relation to complex or novel cases. twithstanding our significant concerns as outlined above, were the Court of Session privative jurisdiction limit to be raised to exclude generally those cases under 150,000 in value, we consider that there would need to be a number of qualifications or safeguards introduced to ensure that improve access to justice in Scotland for injured persons was not seriously curtailed, namely 1. A power to remit actions to the Court of Session for certain personal injury cases should remain, as currently exists under rule of the current Ordinary Cause Rules. The test of cause shown should remain, and Courts should have regard to factors such as legal novelty/complexity or

3 importance to the parties. 2. A similar power for the sanction of the use counsel in cases remaining in the Sheriff Court procedure, again on cause shown. The test must certainly be wider than the truly exceptional test which the Consultation paper envisages, and which takes no account of the inequality of arms which exists between the resources of an injured pursuer seeking reimbursement of losses and the defender, commonly backed by the insurance industry. It seems odd, for example, that the draft Bill proposes to retain the right for an injured pursuer to seek a trial before a jury, yet will not permit that person to be represented by counsel experienced in conducting civil jury trials. 3. A recognition that, in circumstances where the use and deployment of counsel in personal injury actions are anticipated to be much less extensive than at present, a resultant outcome will be a significant increase in the workload to be carried out by the pursuer s solicitor. Accordingly, it is vital for the maintenance of access to justice via the litigation process for injured persons that the level of remuneration recoverable in costs and on success of a claim is truly reflective of the actual work carried out by the pursuer s solicitor. In other words, costs recoverable should be mirror the work done and be recoverable in full following success. Removing/restricting the recoverability of counsel s fees (without a resultant increase in the solicitor table of fees to reflect the additional work carried out by them) would be invidious and would penalise the injured claimant. 4. Where there is likely to be a significant shift of personal injury cases from the Court of Session to the Sheriff Court process, it is vital that the Sheriff Court infrastructure is adequately resourced to cope with the influx of additional work without noticeable delay. Currrently there are no facilities for recording evidence in the Sheriff Court and shorthand writers are relied upon. The need to have shorthand notes extended in complex cases leads to delay and expense. It is submitted that proper recording facilities should be available in all Sheriff Courts. The same applies to ecommerce. The use of emotions and the electronic transmission of information to and from the Court of Session has improved efficiency and significantly reduced the volume of paper in use. As referred to earlier, the Court of Session personal injury procedure works very well with quick turnaround of the signetting of summons; assigning and timetabling Court milestone dates such as consecutive day proof diets at the outset of actions; speedy allocation and hearing of opposed motion diets and the like. There must be sufficient allocation of resources, accommodation and Sheriffs to function in a similar manner to that operated via the Court of Session personal injury procedure presently. In the context of personal injury claims, where the aim of the pursuer is to seek restitution of losses, it is vital that determination of such cases are delivered speedily and without undue delay. Our experience is presently that a number of Sheriff Courts are simply not able to offer consecutive days proof diets because of insufficiency of resources or personnel. We can envisage that without sufficient resourcing to correct that, delay will inevitably creep into the process to the detriment of the injured claimant. If defenders agents know that an assigned proof diet is unlikely to proceed because of insufficient resources, their incentive to engage in constructive efforts and discussions to resolve the case via negotiated

4 means is removed. Such delays would lead to inequality and injustice. Q2. Do you think that the Court of Session should retain concurrent jurisdiction for all family cases regardless of the value of the claim? t relevant to the business of Digby Brown Q3. Do you think that the Court of Session should retain concurrent jurisdiction in any other areas? As outlined in our answer to Question 1, we consider that the Court of Session should continue to retain concurrent jurisdiction for personal injury matters as it does at present, rather than remove its involvement for all cases of a monetary value of 150,000 or below as proposed. Q4. What impact do you think these proposals will have on you or your We have answered this fully in our response to Q1. CHAPTER 2 Creating a new judicial tier within the sheriff court Q5. Do you think that the term "summary sheriff" adequately reflects the new tier and its jurisdiction? We are of the view that any shrieval appointment should be made on the basis of the successful incumbent possessing the necessary knowledge, experience and expertise to carry out his or her duties properly. We would observe that the term summary sheriff may connote inferior status to the status of a full sheriff, and so would question why there is any need to have a different title when carrying out differing roles within the sheriff court process, as the Bill proposes. Q6. Do you agree with the proposal that the qualifications for appointment as a summary sheriff should be the same as that for a sheriff?

5 Q7. Do you agree with the proposed competence of summary sheriffs in family cases? t relevant to the business of Digby Brown Q8. Do you agree that summary sheriffs should deal with referrals from children s hearings? t relevant to the business of Digby Brown Q9. Do you think that in addition to summary crime, summary sheriffs should have powers in other areas of criminal jurisdiction? t relevant to the business of Digby Brown Q10. Do you agree that the allocation of cases where there is concurrent competence between sheriffs and summary sheriffs should be an administrative matter for the relevant Sheriff Principal? Q11. What impact do you think these proposals will have on you or your In the context of personal injury procedure, the draft Courts Reform (Scotland) Bill is presently unclear about whether a new tier of summary sheriffs will be expected to deal with personal injury work (Clause 70 and Schedule 1 of the Draft Bill thereof makes no specific reference to personal injury). There is a need for the Bill to be amended to make the position explicit in advance of becoming law to avoid likely challenges by solicitors representing insurers in relation to choice of forum, procedure and related costs issues. We would advocate that s70 of the Bill explicitly excludes personal injury cases from the jurisdiction of summary sheriffs, and that these remain in the remit of sheriffs who currently deal with personal injury matters under the Ordinary and Summary Cause procedures. To do otherwise would fly in the face of other aims of the Bill such as the creation of a specialist personal injury Court which holds implicit that there is a special case for dealing with personal injury matters. Existing legislation recognises that the small claims court is not a place for personal injury cases.

6 If summary sheriffs are expected to deal with personal injury work of a monetary value of 5,000 or under, it is imperative that they are asked to work within the framework of the existing Summary Cause rules for personal injury actions rather than being asked to asked to adopt an interventionist approach (as is envisaged for certain other types of dispute per s 70 et seq. of the draft Bill. The current Summary Cause rules for PI (which mirror the Coulsfield reforms already adopted in PI procedure in the Court of Session and Ordinary Cause Sheriff Court cases) operate very well. They encourage practitioner case flow and management and facilitate resolution of cases wherever possible, short of a full Court hearing. One of the great advantages of personal injury practice at present is that the same (Coulsfield inspired) rules for personal injury procedure are largely replicated, whether a case proceeds at Court of Session or at Sheriff Court (Ordinary or Summary Cause) level, and that should not be lost. The existing personal injury procedure works well for clients, practitioners (pursuer and defender) and the court system. The current Summary Cause PI rules should not be discarded for an alternative model which is unlikely to bring any additional benefit and which is likely to impinge on consistency of both decision making and the practices operated at local court level. CHAPTER 3 Creating a new sheriff appeal court Q12. Do you agree that criminal appeals should be held in a centralised national appeal court? t relevant to the business of Digby Brown Q13. Do you think that civil appeals should be heard in the sheriff appeal court sitting in the sheriffdom in which they originated? Digby Brown supports the general aim of Scottish persons having local access to justice whenever possible and appropriate our business operations reflect that with a regional presence and offices across Scotland. We would observe however that in the context of personal injury appeals from a sheriff of first instance, there is rarely any requirement for the pursuer to appear in person at the appeal hearing. Moreover, we recognise the attraction of a centrally constituted Appeal Court which would likely result in a consistency of decision making which may not always be present in the current structure. It would also remove the disparity between current sheriffdoms as regards the timescales for an appeal to proceed. We would support a system that has a first sift appeal process in place which would also likely reduce delay.

7 We observe that Clause 55 of the draft Bill provides for the Appeal Court to determine where it will sit and so we consider that would permit the Appeal Court to take account of the particular sensitivities of a case and so would support the proposals as currently drafted. Q14. Do you agree that the sheriff appeal court should be composed of appeal sheriffs who are Sheriffs Principal and sheriffs of at least five years experience? Q15. What impact do you think these proposals will have on you or your We refer to our Answer to Question 13. CHAPTER 4 Creating a specialist personal injury court Q16. Do you agree that establishment of a specialist personal injury court? We have set out our preferred position in our answer to Q1. We believe the Court of Session currently operates effectively as a specialist personal injury court. Where the Bill as proposed will restrict access to the Court of Session to the majority of personal injury claimants, then we give cautious welcome to the creation of an alternative specialist personal injury court. The Bill presently provides for the creation of only one specialist PI court (assumed to be in Edinburgh) the rationale behind that and the exclusion of other centres of mass population in Scotland is something that may be questioned by non-edinburgh based practitioners - particularly when it seems to be envisaged that Edinburgh based counsel will not ordinarily be involved in such cases. In addition and as outlined earlier in our response to Q1, it is essential that any newly created specialist personal injury court is properly funded and resourced to operate effectively and without undue delay. Q17. Do you agree that civil jury trials should be available in the specialist personal injury court? The availability of jury trials in personal injury procedure has had a

8 significant impact in aligning damages awards payable in Scotland towards realistic levels in the eyes of the public by way of lay input. A practical and obvious example of the effect of that impact are the current and realigned range of judicial awards made in fatal case claims in response to the repeated (higher) awards by different civil juries. The right and availability of jury trial should not be lost to injured claimants. Q18. What impact do you think these proposals will have on you or your Although the vast majority of our current Court of Session personal injury practice would transfer to the sheriff court, we envisage that the creation of 1 or more specialist personal injury courts within the sheriff court structure could function effectively. Such courts would have to be adequately resourced and current chapter 43 Court of Session personal injury procedure (such as assigning consecutive day proof diets at an early stage) would assist greatly in avoiding delay and encouraging parties to focus towards settlement of matters at an early stage. CHAPTER 5 Improving judicial review procedure in the Court of Session Q19. Do you agree with the three month time limit for judicial review claims to be brought? t relevant to the business of Digby Brown Q20. Do you agree that the introduction of the leave to proceed with an application for judicial review will filter out unmeritorious cases? t relevant to the business of Digby Brown Q21. Do you agree that these proposals to amend the judicial review procedure will maintain access to justice? t relevant to the business of Digby Brown Q22. What impact do you think these proposals will have on you or your

9 t relevant to the business of Digby Brown CHAPTER 6 Facilitating the modernisation of procedures in the Court of Session and sheriff courts Replace the existing rule making powers with more general and generic powers Q23. Do you agree that the new rule making provisions in sections 85 and 86 of the draft Bill will help improve the civil procedure in the Court of Session and sheriff courts? We support the implementation of the Civil Justice Council providing the CJC with the necessary powers to regulate, monitor and alter procedure where appropriate. To ensure that personal injury procedures and practice continue to remain efficient and serve the proper interests of justice for all parties in the personal injury process, we question whether the Civil Justice Council should continue to make decisions of universal application to all civil matters. As indicated in our introduction to this response, we remain strongly of the view that civil justice cannot be viewed as a single entity. Each area has its own distinct features and measures which may be appropriate in one area may not apply across the board as regards to civil matters generally. Accordingly, we would urge that the CJC give consideration to the creation of a sub committee of specialist personal injury practitioners judges and sheriffs tasked with regulating, monitoring and altering reviewing? personal injury procedure. Q24. Are there any deficiencies in the rule making provisions that would restrict the ability of the Court of Session to improve civil procedure in the Court of Session and sheriff courts? Q25. What impact do you think these proposals will have on you or your We refer to our Answer to Question 23. The creation of new powers in the Inner House of the Court of Session to sift and dispose of appeals with no reasonable prospects of success.

10 Q26. Do you agree that a single judge of the Inner House should be able to consider the grounds of an appeal or motion? Q27. What impact do you think these proposals will have on you or your We support a consistent, fair and accountable decision making process and would hope these proposals reduce delay which currently exist in the process and thus improve access to justice in Scotland for injured persons. The abolition of the distinction between ordinary and petition procedure in the Court of Session. Q28. Do you agree that the distinction between ordinary and petition procedure should be abolished? t relevant to the business of Digby Brown Q29. Do you foresee any unintended consequences for this change? t relevant to the business of Digby Brown Q30. What impact do you think these proposals will have on you or your t relevant to the business of Digby Brown New procedures for dealing with vexatious litigants. Q31. Do you agree that the new procedure will ensure that courts are able to deal appropriately with vexatious litigants? Q32. What impact do you think these proposals will have on you or your

11 Positive Scotland-wide enforcement of interdict and interim orders Q33. Do you agree that an order for interdict should be capable of being enforced at any sheriff court in Scotland? t relevant to the business of Digby Brown Q34. Should interim orders and warrants have similar all-scotland effect and be capable of enforcement at any sheriff court? t relevant to the business of Digby Brown. Q35. What impact do you think that these proposals will have on you or your t relevant to the business of Digby Brown CHAPTER 7: THE PROPOSALS: Alternative Dispute Resolution Q36. Do you think that ADR should be promoted by means of court rules? While we accept that mediation, in certain cases, can be an appropriate tool capable of resolving a dispute, we are firmly of the view that it should not be made compulsory, nor should the Courts seek to encourage parties to utilise it with possible sanctions in expenses. In the vast majority of personal injury actions, mediation would simply be an expensive layer of additional procedure. The implementation of the Coulsfield reforms into Court of Session and Sheriff Court procedure have provided for parties to hold a Pre-Trial Meeting (or Pre-Proof Conference) in the latter stages of the litigation and these have proved to be extremely successful in enabling parties to reach settlement, if that has not already been achieved (particularly so in Court of Session procedure where the Pre-Trial meeting is conducted by parties face-to-face). The reality is that practitioners already mediate cases to settlement. In light of the success of the Coulsfield reforms which have transformed and modernised personal injury litigation in the Court of Session, we remain of the view that in most personal injury cases, mediation is not appropriate. Once an action has been raised, the use of a Pre-Trial Meeting/Pre-Proof Conference effectively takes the place of mediation.

12 There is no evidence that ADR would achieve any greater resolution of cases short of a full Court hearing in personal injury cases, and we would envisage that introduction of an additional step in the personal injury process of compulsory ADR would simply add a further layer of cost and delay. Under the current PI court rules, there is early communication between both sides prior to litigation in the form of the Voluntary Pre Action Protocol where supported by both parties. We would observe that the effective use of protocols can assist in achieving an early settlement and the introduction of a mandatory pre- action protocol would be a welcome further step in parties focusing on the prospects of early and proper resolution of personal injury disputes. Q37. What impact do you think these proposals will have on you or your We refer you to the Answer given to Question 36. ASSESSING IMPACT Equality Q38. Please tell us about any potential impacts, either positive or negative, you feel any or all of the proposals in this consultation may have on a particular group or groups of people. The Coulsfield reforms have brought personal injury litigation in to the 21 st Century.They have transformed the way personal injury litigation is conducted in Scotland. The current proposals favour the financial services and insurance industry. The proposals will result in injustice. Ordinary people, including low paid women and people from ethnic minorities with good cases will be forced not to litigate or under-settle strong cases when faced with the over-whelming resources of the insurance industry. Under settlement of cases to the financial advantage of the insurance industry will leave the government and welfare state to pick up the financial cost of looking after injuried people in the future Business and Regulatory Q39. Please tell us about any potential economic or regulatory impacts, either positive or negative, you feel any or all of the proposals in this consultation may have. thing further to add to issues outlined above Legislation

13 Q40. Please give any comments on the legislation as set out in the Draft Bill. Are there any omissions or areas you think have not been covered. thing further to add to issues outlined above