Introduction This response is prepared on behalf of the Motor Accident Solicitors Society (MASS). MASS is a Society of solicitors acting for the victims of motor accidents, including those involving Personal Injury (PI). MASS has 170 solicitor firm members, representing over 2000 claims handlers. We estimate that member firms conduct upwards of 500,000 PI motor accident claims annually on behalf of the victims of those accidents. The Society s membership is spread throughout the United Kingdom. We are a not for profit organisation, which requires specialism in motor accident pursuer work as a pre-requisite for membership. We also have a Code of Conduct which member firms are required to abide by, which is directed to the best interests of the motor accident victim. The objective of the Society is to promote the best interests of the motor accident victim. This is central, and core to our activity. We seek to promote only those policy and other objectives which are consistent with the best interests of the accident victim. We seek to set aside any self interest in promoting these arguments, recognising that we are in a position of trust, and best placed to observe the best interests of motor accident PI victims first hand. MASS has 14 member firms in Scotland and represent the majority of solicitors who deal with motor accident cases that occur in Scotland. Scotland is considered a separate region from the rest of the UK for the purpose of membership. Membership is by office rather than individual. The vast majority of Scottish member firms are volume businesses acting for victims of road traffic accidents and this response does not necessarily reflect the view of the individual member firms. Contact: ------------------------------------------------ If you have any queries or would like further information, please contact Jane Loney at: MASS St Bartholomew s Court 18 Christmas Street Bristol BS1 5BT Tel: 0117 925 9604 Email: jane@mass.org.uk www.mass.org.uk
CONSULTATION QUESTIONS 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? MASS believes that the raising of the privative jurisdiction of the Court of Session in January 2008 to 5000 has meant that a significant amount of business has already been transferred from the Court of Session to the Sheriff Courts. This has safeguarded PI work being decided in an appropriate forum and recognises that the current powers of the remit between the Court of Session and the Sheriff Courts are adequate. MASS supports the aim that all PI business in Scottish courts be heard by a specialist judiciary. MASS supports the proposition that certain PI should remain capable of being raised in the Court of Session and members of our organization are concerned that the Court of Session be retained as a forum of expertise in relation to PI work. MASS contends that it is appropriate for high value PI work such as head and spinal injury work to be raised in the Court of Session and that the power remains to remit from the Sheriff Courts to the Court of Session due to the complexity of issues, irrespective of the likely monetary value. MASS advocates that PI work continues to be dealt with by specialist solicitors and firmly believes that the underlying principles of MASS as an organization continue to be served in Scotland. It is important that injured people feel that they are being properly represented and have access to justice that is fair and consistent. We are concerned that the proposals assume that no case of a monetary value of 150,000 or lower should be heard in the Court of Session and that the default position will be no certification of Counsel in cases proceedings in the Sheriff Court. MASS considers that there are likely to be cases proceeding with a monetary value below 150,000 where the complexity of matters are such that remit to the Court of Session and/or certification of Counsel should be permitted where the particular circumstances of the case justify. We would support that the test for remit to the Court of Session and certification of Counsel is one of reasonableness. We support that PI business in the Sheriff Court is heard by specialist Sheriffs. Q2. Do you think that the Court of Session should retain concurrent jurisdiction for all family cases regardless of the value of the claim?
road traffic accidents. Accordingly, only those questions which are directed towards PI will be answered. Q3. Do you think that the Court of Session should retain concurrent jurisdiction in any other areas? MASS supports a system where there are safeguards for PI cases and we advocate a system where there is concurrent jurisdiction for PI as opposed to exclusive jurisdiction. As outlined in our answer to Question 1, we support a Bill that allows remit from Sheriff Courts to the Court of Session where the particular circumstances of the case justify that. Q4. What impact do you think these proposals will have on you or your Our organization represents 14 firms of motor accident solicitors in Scotland and, in turn, they represent over 50% of all people who are injured as a result of road traffic accidents in Scotland. MASS is committed to bringing justice to victims of road traffic accidents. The quality of judgments provided by judges in the Court of Session has been high and this has engendered a consistency of decision making. It is important that the victims of road traffic accidents continue to receive this quality and consistency of decision making and these civil cases do not operate in an unsatisfactory culture of adjournment. It is important that a process focused on resolution runs in any forum of justice and there is equality of arms for the victims of road traffic accidents by way of specialist advice and representation. The Bill proposes that a huge amount of work is shifted from the Court of Session to the Sheriff Courts and we are concerned that Sheriff Courts are adequately resourced in terms of number of staff to deal with the increased workload. It is important that the court process is not delayed for clients and resourced in terms of skill and knowledge to ensure that the quality of decision making is not compromised. It is paramount that victims of road traffic accidents have access to justice that allows transfer of cases between different forums given that the value of cases can change during their lifecycle. We support a Bill that allows for this and also a process that has specialist Sheriffs who hear PI cases. We support a Bill and process that allows and encourages the early resolution of cases. The implementation of the Coulsfield reforms and enhanced process into PI procedure in the Court of Session and Sheriff Court both for Ordinary and Summary Cause procedures has worked very well in terms of case management and timetabling and also in encouraging parties to discuss settlement terms and providing a framework of disclosure in advance of any scheduled Court hearings.
In our organisation s response to the Gill Review we advised that MASS supports the introduction of a Pre-Action Protocol and we remain of the strong opinion that an efficient judiciary coupled with a mandatory Pre- Action Protocol would assist victims of road traffic accidents and their legal representatives in the pursuit of justice. This would mean that the only cases which reach court are cases where liability is denied, the insurer makes no offer in settlement or the insurer makes an inadequate offer to settle. 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? MASS believes that it is important that summary sheriffs have the necessary knowledge and expertise to allow this new tier to operate in a consistent and accountable manner. 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? Q7. Do you agree with the proposed competence of summary sheriffs in family cases? road traffic accidents. Accordingly, only those questions which are directed towards PI will be answered. Q8. Do you agree that summary sheriffs should deal with referrals from children s hearings? road traffic accidents. Accordingly, only those questions which are directed towards PI will be answered. Q9. Do you think that in addition to summary crime, summary sheriffs should have powers in other areas of criminal jurisdiction?
road traffic accidents. Accordingly, only those questions which are directed towards PI will be answered. 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? road traffic accidents. Accordingly, only those questions which are directed towards PI will be answered. Q11. What impact do you think these proposals will have on you or your The draft Bill reflects the recommendations of the Gill Review in that we should have a new tier of sheriffs. MASS notes that the Bill is presently unclear about whether this new tier of sheriffs will be expected to deal with PI work (Clause 70 and Schedule 1 thereof makes no specific reference to PI and we support a system where PI operates using specific rules and support the use and extension of the existing PI rules and process that operates well currently in the Court of Session- eg e-motions). We fully support the continued use of PI Summary Cause Rules for PI actions under 5,000. MASS wishes the Bill to be clear that PI rules will operate for PI cases and that simple rules as outlined in s70 are not intended for PI cases. As stated previously, it is paramount that PI cases are dealt with by specialist Sheriffs and by a specialized process. Indeed the Cabinet Secretary previously stated that the small claims court should not be a place for PI cases. Legislation should make it explicit that actions under 5,000 and cases dealt with under Summary Cause procedure preclude PI cases. We are concerned that without the position being made explicit, challenges could be made by those solicitors representing insurers in the future in relation to choice of forum, procedure and related costs issues. MASS submits there is no perceived need for an additional procedure in PI work whereby Summary Sheriffs are asked to adopt an interventionist approach. 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. MASS firmly believes that the existing rules have worked 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 processes/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? road traffic accidents. Accordingly, only those questions which are directed towards PI will be answered. Q13. Do you think that civil appeals should be heard in the sheriff appeal court sitting in the sheriffdom in which they originated? MASS believes that people in Scotland should have local access to justice where practically possible. It is unusual for a PI case to have an appeal hearing where clients require to attend the appeal hearing. Whilst it makes sense that if there was an Appeal Court, it is not clear where the geographical situation of this court will be. Clause 55 of the draft Bill provides for the Appeal Court to determine where it will sit. Whilst we recognize the need to local access to justice we recognize that a central Appeal Court should result in a consistency of decision making that as an organization we are keen to see prevail in Scotland. Our organization supports a system that is consistent and has a first sift appeal process in place. 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? MASS supports and welcomes the creation of specialist PI courts. Moreover, MASS believes that there should be multiple centres of excellence throughout Scotland. The Bill in its present format provides for the creation of only one specialist PI court in Edinburgh (albeit that the draft Bill does not state the geographical location of this). Our organization is unconvinced of the rationale behind that (particularly when it seems to be envisaged that advocates will not be involved in PI cases other than those over 150,000 or cases of significant complexity). MASS would urge reconsideration of the position and would submit that there is a case to be made for the creation of multiple specialist PI courts in major Scottish cities, especially Glasgow. In addition, it is essential that any specialist PI court is properly funded and resourced. Our organization does not consider that the creation of two additional specialist PI sheriff posts at Edinburgh Sheriff Court would be adequate when it is envisaged that a significant volume of additional PI business would be moved there and Sheriff Courts will hear civil jury trials. In our organisation s response to the Gill Review we made comment in relation to the fixing of staccato diets of proof which continue not to lend themselves to serving the interests of justice and frequently lead to delay, inefficiency and duplication of work. MASS submits that specialist PI courts must be given sufficient staffing and resources (both financial and in terms of available accommodation for sittings) to ensure civil cases can proceed efficiently and without delay. Specifically, we would urge that resourcing is adequate to permit the timetabling of consecutive day proof diets (where required) without any resultant delay to other timetabled cases. Q17. Do you agree that civil jury trials should be available in the specialist personal injury court? MASS believes that civil jury trials should be retained and should be available to all Scottish people where they are deemed appropriate. Furthermore, we believe that any PI specialist courts should have an all- Scotland jurisdiction. Q18. What impact do you think these proposals will have on you or your
As outlined, MASS has concerns about the adequacy of resourcing of any specialist PI court. It is important that there is proactive case management in place for PI cases and this requires adequate resourcing and accountability. Currently the Court of Session PI procedure works with the assignment of a court timetable and a proof diet is allocated at the outset of the timetable. In practice, all parties know when the case is due to call in court and there is a focus and an incentive to drive cases to resolution- this is beneficial to clients, defenders and indeed to the efficient working of the system itself. Consideration should be given to extending the practice of issuing a Court timetable with a proof diet assigned at the outset of a case to all PI cases. 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? Q20. Do you agree that the introduction of the leave to proceed with an application for judicial review will filter out unmeritorious cases? Q21. Do you agree that these proposals to amend the judicial review procedure will maintain access to justice? Q22. What impact do you think these proposals will have on you or your
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 and that Council having the necessary powers to regulate, monitor and alter procedure when appropriate. In the context of PI cases and ensuring that procedures and practice continue to remain efficient and serve the proper interests of justice, our organization has a concern that the make up of the Civil Justice Council should include practitioners with current experience in different area of PI practice. Specifically, MASS advocates that the interests of victims of road traffic accidents are best served by rules which are consistent and practical and which allow access to justice and redress via litigation without undue delay. We would advocate that the make up of the Civil Justice Council should include a practitioner member from the specific field of motor accident claims. 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.
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 believe that these proposals will have a positive impact on our members and the people our member firms represent. We support the basis of appeal as having a consistent, fair and accountable decision making process. 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? Q29. Do you foresee any unintended consequences for this change? Q30. What impact do you think these proposals will have on you or your 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?
MASS supports a system that deals with vexatious litigants. Q32. What impact do you think these proposals will have on you or your MASS believes that any legislation to deal with vexatious litigants is a positive step. 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? Q34. Should interim orders and warrants have similar all-scotland effect and be capable of enforcement at any sheriff court? Q35. What impact do you think that these proposals will have on you or your CHAPTER 7: THE PROPOSALS: Alternative Dispute Resolution Q36. Do you think that ADR should be promoted by means of court rules? MASS would not support the introduction of ADR in relation to the cases currently being progressed by its practitioner members. There is no evidence that ADR is beneficial to the victims of road traffic accidents. As alluded to earlier, our current PI procedures work well in terms of cases progressing efficiently and in terms of facilitating resolution short of a full court hearing wherever possible.
Our concern would be that ADR would add a layer of cost which would ultimately rest with the client. The introduction of ADR seems unnecessary and impractical. Under the current PI court rules, there is early communication between both sides of litigation and the introduction of mandatory pre- action protocol would be a natural and entirely practical precursor to litigation with resolution and client care at the heart of it. 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. We refer you to our previous responses. 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. We refer you to our previous responses. Legislation 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. We refer specifically to our Answer to Question 11. MASS would support Section 70 of the Bill to make clear that PI cases are exempt from this procedure. In addition, we refer you to our previous responses.