Ministers dilute proposed civil court changes

Ministers will row back on proposed changes to the civil courts system amid mounting opposition.

Cabinet Secretary for Justice, Kenny MacAskill, has informed MSPs on Holyrood’s Justice Committee that the Scottish Government intend to lower the threshold contained in the Courts Reform (Scotland) Bill for cases moving to the Court of Session.

Under the proposed legislation, the threshold for cases to be heard in the Court of Session was to be raised from £5,000 being sued for to £150,000.

The figure is now to be reduced to £100,000 after MacAskill confirmed ministers would support an amendment by SNP MSP Sandra White. Two other amendments tabled by members of the opposition, one to reduce the threshold to £50,000 the other £30,000, were both voted down by SNP MSPs together with Independent MSP John Finnie.

The concession has been branded inadequate by the Faculty of Advocates, which warned the change would make a “limited difference”.

MacAskill said: “Although the committee has heard from organisations including Which? that support a £150,000 limit, many of those who have appeared in front of the committee think that £150,000 is too high for the exclusive competence.

“Indeed, the same point was highlighted, to a lesser degree, in the consultation on the bill. We have recently had further discussions with the STUC, which also voiced concerns about the appropriate limit.

“Taking all that on board, I think that amendment 24 strikes a balance between the original exclusive competence figure of £150,000 that was suggested by Lord Gill and the views of some stakeholders, while still being able to deliver the more efficient and affordable system that is intended in the Scottish civil courts review. I am therefore happy to support amendment 24.”

The reforms were expected to see a significant transfer of business from the Court of Session to the sheriff courts – a shift of around 2,700 cases, equivalent to more than half of Court of Session business.

However, questions over the extent of the hike dogged the Bill through Stage 1 amid the Faculty labelling the £150,000 cut-off “far too high” and the Law Society of Scotland insisting it should not exceed £50,000.

Dean of Faculty, James Wolffe QC, said: "Many stakeholders gave clear evidence to the Justice Committee that the proposed exclusive competence level of £150,000 - a 3000% increase on the present figure - was far too high.

“I am disappointed that the Scottish Government has accepted an amendment which only reduces the figure to £100,000. The Scottish Government knows that, given the distribution of cases in the Court of Session, that makes only a limited difference to the number of cases which will be compulsorily displaced to the sheriff court.

"The focus now shifts to what will happen in those cases. Unless there are changes in the proposed arrangements for sanction for counsel in the sheriff court, this Bill will erode the practical ability of ordinary Scots with personal injury claims to benefit from the effective representation which advocates currently provide for them in the Court of Session.

“Ordinary men and women who seek compensation for an injury and who can currently instruct counsel on a ‘no win no fee’ basis will be deprived of that opportunity unless the rules on sanction for counsel are changed.

"I take heart from the acknowledgment during the debate of the importance of this issue. But words are not enough.

“Bodies such as the Scottish Police Federation, the EIS, Clydeside Action on Asbestos and the STUC have stressed the importance to their members of retaining effective access to independent advocates. Further amendment to the Bill will be needed if that is to be assured."

Fiona Robb, secretary for the  Society’s Civil Justice Committee, added: “This is a significant concession and we are pleased that the Justice Committee and the Cabinet Secretary for Justice have taken on board many of the comments made on this aspect of the bill and have  recognised that raising the current threshold level from £5,000 to £150,000 is too big a leap.

“We have expressed concerns that having a limit above £50,000 could restrict people’s access to the higher courts, though this change goes some way towards mitigating this.

“We also think that sheriff courts will have to be adequately resourced to manage what may still be a significant transfer of business.”