Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 4

PD2265/15

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

GRAHAM WAKEFORD

Pursuer;

against

ADVOCATE GENERAL FOR SCOTLAND

Defender:

Pursuer:  Allardice;  Thompsons

Defender:  Tait;  Morton Fraser LLP

15 December 2015

[1]        This is a personal injuries action which proceeds under chapter 43 of the Rules of Court.  The accident occurred on 3 December 2014.  The action was raised and signetted on 14 September 2015 and sought a conclusion for £25,000.  The date of signetting is important because it is before the coming into force on 22 September 2015 of section 39 of the Courts Reform (Scotland) Act 2014 which raised the privative jurisdiction of the Sheriff Court to £100,000.  (Courts Reform (Scotland) Act 2014 (Commencement No 3, Transitional and Saving Provisions) Order 2015/247 (Scottish SI)). 

[2]        The case came before me on the defender’s motion to remit the case to the Sheriff Personal Injury Court in terms of section 93 of the Court Reform (Scotland) Act 2014.  Given the importance to other similar actions during the transitional period I gave an ex tempore judgement.  This is an edited version of that opinion. 

[3]        In moving the motion Miss Tait recognised that section 93 did not apply to this action since it had been raised before 22 September 2015.  Accordingly her motion proceeded under section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and the “old” Rules of Court 32(1).  Miss Tait submitted that it would be wrong to ignore the existence of the new Sheriff Personal Injury Court.  She said that this was in effect a simple action which had occurred at work.  The pursuer had sustained an injury to his shoulder while lifting the lid of a flam vault on a boat.  He was absent from work for three weeks.  He returned to light duties and then to full duties in April 2015.  Any wage loss was minimal resulting from potential overtime loss.  There was also a claim for services.  No medical reports have been lodged, but she submitted that the value of the claim was not great. 

[4]        Although defences had not been lodged they had been intimated and the defenders admitted liability.  Accordingly the only issue was quantum.  In her submission the criteria in McIntosh v British Railways Board 1990 SC 338 were met.  In particular there were procedural advantages to a remit.  She was aware that other outstanding cases were being transmitted to that court already and the procedures in the Sheriff Personal Injury Court would be similar to chapter 43.  There was a facility for instruction and sanction of counsel and that should not present a difficulty.  The motion should be granted.

[5]        In opposing the motion Mr Allardice drew my attention to the terms of section 14 of the 1985 Act and submitted that the motion as enrolled was incompetent.  The section reads:

“The Court of Session may in relation to an action before it which could competently have been brought before a sheriff, remit the action to the sheriff within whose jurisdiction the action could have been brought where, in the opinion of the court, the nature of the action makes it appropriate to do so”.

Mr Allardice submitted the Sheriff Personal Injury Court was not in existence at the time the action was raised and it was therefore incompetent for me to remit the case to that court.  As I understood it, his position was that the Court of Session could remit the case to a sheriff court but not the all-Scotland personal injury court.

[6]        In any event Mr Allardice submitted that I was bound by the decision of the Inner House in McIntosh v British Railways Board.  McIntosh had been followed by Paterson v The Advocate General for Scotland 2007 SLT 846, a decision of Lord Hodge and McIntosh v First Glasgow [2009] CSOH 117, a decision of Lord Brodie.  Both Outer House judges considered themselves bound by McIntosh v British Railways Board.  The criteria in McIntosh were not made out.  The action was signetted on 14 September 2015 and at that time the Sheriff Personal Injury Court was not in existence.  The pursuer had the choice of raising the action in either this court or the local sheriff court.  He had elected to raise the action in the Court of Session.  He should not be deprived of that choice.  Mr Allardice’s assessment of the value of the case put it in the region of £10,000 to £20,000, well in excess of the privative jurisdiction.  The likely date for a proof in this court was June 2016.  In contrast it was not known when the proof date would be available in the personal injury court.  The pursuer should not be faced with the uncertainties of remit where more than one court has jurisdiction.  There were at present uncertainties on the issue of costs in the sheriff court.  Although the court dues were similar to the Court of Session, it has become apparent that some of these dues need to be paid at an earlier date, increasing the burden on funding.  There were also additional costs to be incurred including a shorthand writer.  He told me that the new court cannot tape record proofs and therefore a shorthand writer needs to be engaged.  That means that where settlement is made within two weeks prior to the proof date there is the additional cost of the shorthand writer to be met.  He informed me that those instructing him represent a large number of potential pursuers many of whom are funded through the Trade Unions.  One of the issues for them is whether or not it would be cheaper to litigate in the local sheriff court rather than the Sheriff Personal Injuries Court.  In this case there were three potential sheriff courts including the Sheriff Personal Injury Court which would have jurisdiction.  He submitted that the chapter 43 procedure had been very successful.  One of the reasons for its success was that it was considered that a centralised system with the use of experienced counsel and solicitors was effective and efficient.

Decision

[7]        The Sheriff Personal Injuries Court was established by virtue of section 41 of the Courts Reform (Scotland) Act 2014 and the All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015/213 (Scottish SI).  It came into being on 22 September 2015 after the raising of this action.  Neither of these provision were cited to me and I did not consider that I had full and sufficient submissions to determine the competency of the defender’s motion.

[8]        On the assumption that the motion is competent I do not consider it is appropriate to remit this case to the sheriff court.  The Courts Reform (Scotland) Act 2014 raised the privative jurisdiction of the sheriff court to £100,000.  That will mean that many cases which are presently brought to this court under chapter 43 will in future require to proceed either in the local sheriff court, or the Sheriff Personal Injury Court.  Parliament did not provide that all cases that have been raised in the Court of Session before the commencement of the 2014 Act but would after the commencement fall within the privative jurisdiction of the sheriff court should automatically be transmitted to the new court.  Accordingly, in my view, at this stage any motion which is brought to remit to the sheriff court whether the local court or the new Sheriff Personal Injuries Court must still apply the principles which are outlined in McIntosh v British Railways Board. 

[9]        In his opinion in McIntosh Lord Hope (at p342) made it clear that section 14 of the 1985 Act does not say that the power to remit is to be available where the Lord Ordinary is of the opinion that the smallness or simplicity of the case makes it appropriate to do so.  He continues:

“The power should be seen as having been introduced to meet the needs of particular cases, not to affect the general redistribution of work from one court to another.  There is no hint in the wording of the section which is intended to have that effect and there are sound practical reasons for thinking that if the section was to have the effect of redistribution cases to the sheriff court just because they were small or simple, the matter would have been approached in a different way”.

In my opinion the motion before me is an attempt to effect a general redistribution of work.  The effect of remit in this case would create uncertainty both for this pursuer and other pursuers in other actions currently before this court.  It would give rise to unnecessary expense and delay.  The fact that a claim is small and straightforward is not in itself enough to justify remit to the sheriff court.  In this case it seems to me that the practical advantages are firmly with the pursuer and for me to grant the motion would deprive the pursuer of the choice of court which he has validly exercised.  It would lead to procedural uncertainty as to how the case would proceed in the sheriff court and may lead to delay and further costs.  Accordingly I shall refuse the motion.