101. Small Claims Briefing
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
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
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
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
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.