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...