Lawford Kidd's Blog

The controversial Courts Reform (Scotland) Bill is to be amended after the Scottish Government agreed not to increase the exclusive competence of the sheriff court to £150,000. Instead, it will be increased to £100,000.

The new threshold of £100,000 was agreed during Holyrood’s Justice Committee's stage 2 consideration of the Bill, despite to pressure from MSPs to have the figure set at either £30,000 or £50,000.

The Government’s concession is perhaps no more than a step in the right direction, with much of Scotland’s legal community – particularly its personal injury lawyers – remaining concerned about the ability of claimants to obtain justice.

The Faculty of Advocates has published a response to the Scottish Civil Justice Council’s (SCJC) questionnaire on pre-action protocols that require necessary steps to be taken before a case can start.

Presently, there are no compulsory pre-action protocols in Scotland. Instead there are four voluntary protocols covering: Court of Session commercial actions; personal injury claims up to £10,000; professional negligence claims up to £20,000; and, industrial disease claims.

With the Courts Reform (Scotland) Bill proposing to give the Court of Session the power to introduce compulsory pre-action protocols, last month, the SCJC began an information gathering exercise on: (1) the current use of voluntary pre-action protocols; and (2) the possible introduction of compulsory protocols.

Briefing Paper: Seminar at the Royal Faculty of Procurators in Glasgow on Thursday, 10th November 2011

“Access to justice is only possible if both parties have adequate funding.  If neither party has adequate funding, the litigation will not happen.  If only one party has adequate funding, the litigation will be a walk over” (Lord Jackson’s Review – page 41 – para2.4).

Lord Gill in the Report of the Scottish Civil Courts Review, chapter 14, undertakes an extensive review of funding options and states “we do however recommend that this issue should be addressed as a matter of urgency by the Working Group on Judicial Expenses that we recommend should be established.” (para127 page 104).

The proposals put forward by Lord Jackson are currently under review in Parliament in the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill.  This Bill seeks to restrict conditional fee agreements (CFAs) in England.  The government is keen to proceed with Lord Jackson’s proposals and in particular, qualified one way cost shifting (QOCS).