Courts Reform (Scotland) Bill – privative jurisdiction
This week we will be publishing an update each day covering a different reform contained in the (now passed) Courts Reform (Scotland) Bill. This update will cover the increase in the privative jurisdiction of the Sheriff Courts.
Increase of the Privative Jurisdiction
At present, any case which is for £5,000 or less must be raised in the Sheriff Court, as opposed to the Court of Session. The Bill increases the privative jurisdiction of the Sheriff Court to £100,000, meaning that all cases up to the value of £100,000 will, subject to certain limited exceptions, have to be raised in the Sheriff Court rather than Court of Session.
The initial draft Bill proposed to increase the privative jurisdiction of the Sheriff Court to £150,000 as recommended by the Scottish Civil Courts Review. The aim was to free up the Court of Session, Scotland’s equivalent of the High Court, to deal with the most complex and novel cases. After consultation the limit was reduced to £100,000.
Consideration and Amendment
During consultation concerns were expressed to the Scottish Parliament’s Justice Committee by a number of parties that the increase was disproportionate and would lead to issues of access to justice.
The two main concerns were:
(1) if the Sheriff Courts are not able to deal with the increased workload there is a real possibility that the increase in the privative jurisdiction would be counterproductive, and
(2) that the cost of instructing counsel in the Sheriff Courts could be prohibitive for some litigants, leading to a possible inequality of arms.
The committee agreed that the increase in the privative limit to £150,000 was too high and questioned whether the Sheriff Courts could handle the increased workload. Their solution was to recommend an increase to £100,000. This was incorporated into the Bill that was passed by Parliament last week.
The increase in the monetary level at which cases must be raised in the Sheriff Courts is a fundamental change to the civil courts system in Scotland.
The Bill does contain welcome provisions allowing for cases to be remitted up to the Court of Session if they are particularly complex. These provisions were brought in as recognition that monetary value is not always an indicator of complexity or novelty. However, there is still a danger if these provisions are not operated as intended. Only time will tell if this reform will lead to cases finding their correct level in the judicial system, or if it leads to issues of access to justice and the overburdening of the Sheriff Courts.
It should be noted that the increase in the privative jurisdiction has not been recommended in isolation. Rather, it is coupled with other reforms such as the introduction of specialist sheriffs, which will be covered by further updates this week.