The Scottish Court system is in the middle of a significant overhaul designed to increase the efficiency and effectiveness of the use of its resources. One of the main aims is to ensure that cases are dealt with at an appropriate judicial level so that the time of the country's top judges is ring fenced to deal with the most important and difficult cases rather than more straightforward claims.

One of the main methods used to achieve that aim has been to increase the minimum value of claims allowed to be raised in the Court of Session in Edinburgh (the equivalent of the English High Court) from £5,000 to £100,000. The result is that cases worth less than £100,000 can only now be raised in the sheriff courts (English county court equivalents).

This was a controversial change. One of the main arguments against the change was that the value of a case does not necessarily determine its importance or complexity.

The safety valve against that risk is provided in the form of section 92 of the Court Reform Act 2014. That section allows an application to be made to have a case worth less than £100,000 to be remitted from the sheriff court to the Court of Session if (a) the sheriff is persuaded that the case is "important or difficult" and then (b) a judge in the Court of Session is persuaded that "cause" has been shown that the case should be allowed to proceed in the Court of Session.

The court rules have long allowed sheriff to transfer cases to the Court of Session where they are important or difficult. But the introduction of the second stage which asks the Court of Session whether it is willing to accept the case is new.

What will amount to sufficient "cause" has now been considered in the context of four claims for damages arise out of the insertion of vaginal tape and mesh products for the treatment of urinary incontinence or prolapse, each valued by £50,000 and £80,000. Those cases were found to show sufficient cause for a variety of reasons:

  • There were a large number of other cases which would all give rise to similar issues.
  • Special procedures had been put in place in the Court of Session to manage those cases (which were not available in the sheriff courts).
  • There was a considerable volume of material to for the court to consider and a multiplicity of legal issues some of which were ground breaking.
  • There was also significant public interest in the outcome of these cases given that they may call into question the public confidence in the licensing system which permitted these products to be supplied in the UK.

While a number of factors are listed in the decision, complexity and importance (and particularly public importance) are likely to be the key touchstones for determining whether cases worth less than £100,000 will be allowed to proceed in the Court of Session.

This decision is a useful reminder that the Court of Session will remain the venue for the determination of the most important and difficult cases by the country's top judges who, as a result of these changes, are now able to deal with those cases more quickly and efficiently.

The decision issued is available here.