The Act Part 3 – Civil Procedure
99.Part 3 (Civil procedure) chapter 1 makes provision for civil jury trials in an all-Scotland sheriff court (for example the proposed Sheriff Personal Injury Court). Since the enactment of section 11(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, it has not been possible for a civil action in the sheriff court to be tried before a jury. This was because even though the number of jury trials in the sheriff court was small, it was considered that the procedure had a disruptive effect on the work of the court. Civil jury trials have, however, continued to be available in the Court of Session and in recent years these have almost invariably been applied for in relation to personal injury actions under Chapter 43 of the Rules of the Court of Session. The intention is that the existing Court of Session practice and procedure in relation to jury trials will be transplanted in its entirety into the new Sheriff Personal Injury Court.
100.This chapter also includes provisions for a replacement for small claims and summary cause procedures in the sheriff court. The intention is that there should be a new single set of rules for cases for £5,000 or less which will be called “simple procedure” which it is proposed will be dealt with mainly by the new summary sheriffs. The most significant differences between the two procedures are that legal aid is not available for small claims and the expenses which can be awarded in small claims are limited.
101.The Scottish Civil Courts Review recommended: “The sheriff court legislation should be amended to provide that an interdict or interim order granted in one sheriff court should be enforceable throughout Scotland.” Chapter 1, therefore, includes provisions on the granting and enforcement of interdicts with effect in more than one sheriffdom.
102.Chapter 2 makes provision on judicial review. The Scottish Civil Courts Review considered whether the rules governing the procedure in petitions for judicial review were satisfactory and made a number of recommendations. The Act takes forward those recommendations by introducing a time limit for applications and a new permission to proceed stage.
103.Chapter 3 makes provision on the remit of cases to or from the Court of Session. This goes hand in hand with the proposals to raise the exclusive competence of the sheriff court. This facility is an important safeguard which counters the argument that personal injury cases in particular must be raised in the Court of Session in case they raise complex or novel points of law. The provision to permit remit to the Court of Session provides reassurance, however, that complex, but lower value, cases can receive the attention of the expertise of Court of Session judges. The provision permits remit from the Court of Session ensures that artificially inflated claims may be dealt with in the sheriff court.
104.Finally, chapter 3 makes provision to permit a case to be remitted by the sheriff to the Scottish Land Court in appropriate cases.
105.The Inner House of the Court of Session ruled in Apollo Engineering Ltd. (in liquidation) v James Scott Ltd ([2012] CSIH 4) that limited companies must have legal representation by a solicitor or counsel. This case is one of a series which continues the position that non-natural persons may not be represented by a lay person. This position has grave consequences for small business. A small company defending or pursuing a claim must incur irrecoverable legal costs when disputing a claim, whereas an individual need not instruct a solicitor and can appear as a party litigant at no cost. Small companies, partnerships and unincorporated associations may be disadvantaged by this restriction, particularly in simple procedure cases, because the cost of legal representation may be disproportionate to the value of the claim.
106.In addition, there may be circumstances outwith simple procedure cases where this rule may require to be loosened, allowing judicial discretion to be applied. Chapter 4, therefore, makes provision for lay representation in both simple procedure cases and other proceedings.
107.Chapter 5 provides that the same rules should apply in relation to excusal from civil jury service as apply in relation to excusal from criminal jury service.
108.The Scottish Civil Courts Review identified litigants who conduct their cases in an unreasonable manner as a growing problem for the administration of justice. Their conduct was said to impact not only on their opponents but also on the efficient use of court resources and on other litigants with cases of more merit and substance. The Review proposed changes in this area to permit the courts to have greater control over litigants whose behaviour took advantage of the court process to frustrate the efficient resolution of cases or who used the raising of actions as a weapon itself. Therefore, in chapter 6, the opportunity has been taken to re-enact the Vexatious Actions (Scotland) Act 1898 and bring its provisions up to date. The re-enactment retains provisions for an order to be granted by the court, preventing a vexatious litigant from instituting new proceedings without first obtaining the permission of a judge of the Outer House of the Court of Session.
109.The Scottish Civil Courts Review recommended that the court itself should be able to make civil restraint orders similar to those which may be imposed in England and Wales, but adapted for Scots law and Scottish courts, and the Act makes provision for this.