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About the P&I Team Briefings Home | Responses | PFI Index | Policy Guide
101. Small Claims Briefing
Communications

 

 

 

101. Small Claims Briefing

Introduction

Three recent Scottish Parliament motions make proposals for reforms to the legal system with the aim of improving access to civil justice. This briefing looks at the proposal to extend the use of the Small Claims procedure at the Sheriff Court and warns that, while the principle may be attractive, such a move might have a serious detrimental effect on sick and injured workers pursuing personal injury claims.

Access to Justice

Scottish workers face serious problems in gaining access to justice through the courts and tribunals. Citizen's Advice Bureau and Law Centre's are under funded and overstretched and most individuals cannot afford the legal advice necessary to protect their home, their income and other legal rights.

The Legal Aid system in Scotland is failing disadvantaged people day in and day out. Despite the partial extension of legal aid assistance to employment tribunals, the increase in human rights cases and the expansion of immigration related work, the number of civil cases supported the legal aid board continues to plummet.

  • The number of people offered advice and assistance is down 19% since 1999, falling 9% in the last 12 months alone.

  • Full civil legal aid was offered to 5% fewer cases in 2003/04, contributing to a drop of almost 50% over the last 20 years.
  • Over two thirds of civil legal aid is spent on matrimonial or family cases.
  • Spending on vital issues such as employment, discrimination, housing or welfare rights is so low that it is not recorded separately in the Legal Aid Board statistics.

In 1997 the Labour Party manifesto committed the incoming government to the establishment of a community legal service that would redirect resources to meet the legal needs of disadvantaged groups. While such reforms have been in place in England and Wales for several years, reform of legal services and access to justice in Scotland has been stalled despite the widespread consensus on the need for reform.

The scope of the Small Claims Procedure at the Sheriff Court is one element of this wider picture of access to justice. On the face of it, this less formal court procedure could be used more widely to enable people to settle their legal disputes. If the system is expensive and inaccessible, why not use an informal process to give people access to justice? Sadly, it's not that simple.

The civil justice system in Scotland requires a radical overhaul and this paper highlights the risk that well intentioned changes to the Small Claims Procedure may have a drastic and counter productive effect if adopted on a piecemeal basis.

Trade Unions and the Law

Against this background of unmet legal need, Scottish Trade Unions are unquestionably the largest, independently-financed providers of legal assistance on employment and welfare related matters. These services meet a vital need in the Scottish legal system. With specific reference to personal injury cases, Scottish trade unions represent people at the point in their lives when they are frequently most vulnerable unable to work because of illness or injury in an unsafe workplace.

It is wholly inappropriate to suggest that all personal injury cases up to the value of the £5,000 can be handled appropriately in the informal procedures of the Small Claims Court and in a Sheriff Court system that lacks the specialist knowledge and experience required. The best authority for this view lies in the report of the working party chaired by Lord Coulsfield. This report is the foundation of the procedure in most personal injury cases. As a result, Scotland now has:

  • A central court dealing with almost all personal injury cases
  • A specialist court developing expertise in a complex area of law heavily influenced by European regulations and the decisions of the European Court of Justice.
  • A customised process designed, specifically, to ensure the speedy disposal of cases with an emphasis where possible on early settlement based on realistic valuations of the claim.

In short, under the specialist procedures of the Court of Session Scotland has a specialist and expert judicial resource to which disadvantaged people have prompt, effective and affordable access. Unlike the rest of the civil justice system, there is no access to justice problem in Scottish personal injury cases.

Small Claims and the Privative Jurisdiction of the Sheriff Court.

Greater access to an informal process may be of some assistance to people with relatively simple legal problems. Even then it is arguable that the loss of access to legal aid associated with this proposal may offset the purported benefits of the small claims process.

If this proposal is applied to injury cases then many workers will be denied access to the specialist knowledge and experience of the Court of Session. If the Small claims procedure covers claims up to £5,000, and the Sheriff Court is granted privative or exclusive jurisdiction over such cases then the quality of justice available will diminish greatly.

In theory, Sheriff Courts cover a wide range of civil and criminal matters. In truth there are significant legal areas where the Sheriff Court fails to serve the legal needs of Scottish people. For example, the Sheriff Courts have jurisdiction over race, sex and disability discrimination law on matters such as education and access to goods and services. The statistics and the case law shows that, unlike employment tribunals, the Sheriff Courts have failed to offer effective access to justice within this specialist area of the law. The Sheriff Courts are not geared up to deliver consistent and reliable decisions on discrimination law and the same will apply to personal injury cases if the Sheriff Court jurisdiction is extended.

Options for Change

UNISON encourages all MSPs to support measures designed to offer improved access to justice. However, we ask MSPs to take account of those reports competed but not yet implemented which identify the many interlinking changes that are required to make the justice system effective and accessible.

Changing the Small Claims limit and the privative jurisdiction of the Sheriff Court may have unintended negative consequences in terms of the speed, quality and accessibility of justice in the court system as a whole. The present system for personal injury claims is already efficient and accessible. Therefore, personal injury claims should be excluded from both the extension of the small claims procedure and the change to the privative jurisdiction of the Sheriff Court.

Perhaps more constructively, the Executive should look to consolidate the gains made since the adoption of the Coulsfield report by specifically including personal injury claims above £1,500 within the privative jurisdiction of the Court of Session. Thus leaving the small claims procedure to develop in accordance with the needs of other court users without compromising the rights of victims of workplace accidents or illness.

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Further Information

Contacts list:

Dave Watson -
d.watson@unison.co.uk

@ The P&I Team
14 West Campbell St
Glasgow G26RX
Tel 0845 355 0845
Fax 0141-307 2572