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The Courts Reform (Scotland Act 2014)

November 2014

The Courts Reform (Scotland Act 2014)

The Courts Reform (Scotland Act 2014) ("the Act") was passed in the Scottish Parliament on 8 October 2014 and received Royal Assent this week. The Act makes some of the most significant changes to the Scottish civil justice system in over 40 years. The effects will be felt over the coming few years as these changes come into effect. We have no clear timetable as yet but the Scottish Government hope to start introducing changes during 2015.

Whilst many of the changes mentioned above will not impact, to any great extent, the work we currently do for our lenders and other clients in the financial and debt sectors, it is worth highlighting the areas which may have an impact.

The Exclusive Competency of the Sheriff Court in Scotland

Local Sheriff Courts in Scotland are set to have increased powers. Until this Act, only actions involving payment of sums of £5000 or less were required to be raised in the local Sheriff Courts. The Act greatly increases that sum to £100,000. 

In addition, certain orders, which previously could only be made in our highest Civil Court, the Court of Session, may now be made in the Sheriff Court, the most notable of which relates to the remedy of reduction. On occasions, lenders may require to either seek or oppose an application for reduction of, for example, a standard security or tenancy agreement and to be able to do so going forward in the Sheriff Court should positively impact both costs and timescales.

The new Sheriff Appeal Court

The Act creates the new Sheriff Appeal Court which is to be made up of Sheriffs Principal and Sheriffs of at least 5 years’ seniority. The aim is that this new Appeal Court will deal with the majority of appeals coming from the Sheriff Courts, with only very limited rights of appeal, and with the authority of the new Appeal Court, to the Court of Session of the High Court of Justiciary (in criminal cases).

The new office of Summary Sheriff

The new Summary Sheriff will have similar jurisdiction to a Sheriff but will be limited principally to dealing with cases of a value below £5000 and less complex civil and criminal matters. It may be that the Summary Sheriffs will also deal with repossession actions.

Simple Procedure

This is a new civil procedure to replace the current small claims and summary cause procedure and will apply to cases with a value below £5000. Draft Court Rules for this new procedure have not yet been published but the intention is to simplify matters for cases of a lower value and reduce the costs involved in such actions. There will only be very limited rights of appeal under Simple Procedure. 

Appeals from Scotland to the UK Supreme Court

The Act introduces new provisions for Supreme Court appeals. Going forward, such appeals will only be competent with leave from either the Inner House of the Court of Session or from the Supreme Court itself, if the Inner House refuses permission. The test to be applied is whether ‘the appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time’.

The number of cases likely to meet this test is small. However, it is interesting to note that in their recent submission to the Smith Commission, the Scottish Government has suggested removing the right of appeal to the Supreme Court completely. It is unlikely this proposal will be adopted for so long as Scotland remains part of the UK.

Optima Legal (Scotland) Limited

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