Motion to remit ‘small and straightforward’ damages claim to new personal injury court refused

Lord Boyd of Duncansby held that the fact that a claim was “small and straightforward” was not in itself enough to justify remit to the sheriff court.

The court heard that the action raised by Graham Wakeford against the Advocate General for Scotland was signetted on 14 September 2015, 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.

The case came before the judge 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.

In moving the motion counsel for the defender recognised that section 93 did not apply to the action since it had been raised before 22 September 2015, thus the motion proceeded under section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and the “old” Rules of Court 32(1).

It was 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 been absent from work for three weeks after sustaining an injury to his shoulder while lifting the lid of a flam vault on a boat.

He returned to light duties and then to full duties in April 2015 and it was submitted that any wage loss was “minimal” resulting from potential overtime loss, thus the value of the claim was “not great”.

Although defences had not been lodged they had been intimated and the defenders admitted liability, meaning the only issue was quantum.

In her submission the criteria set out in the case of 1990 McIntosh v British Railways Board were met, and in particular there were procedural advantages to a remit.

Counsel for the defender said other outstanding cases were being transmitted to the new court and the procedures there would be similar to chapter 43.

There was a facility for instruction and sanction of counsel and it was said that that should not present a difficulty.

In opposing the motion counsel for the pursuer referred to the terms of section 14 of the 1985 Act and submitted that the motion as enrolled was” incompetent”.

The Sheriff Personal Injury Court was not in existence at the time the action was raised and it was therefore incompetent to remit the case to that court.

His position was that the Court of Session could remit the case to a sheriff court, but not the all-Scotland personal injury court.

In any event it was submitted that the court was bound by the decision of the Inner House in McIntosh, the criteria of which were not made out.

It was argued that the pursuer had the choice of raising the action in either this court or the local sheriff court, but had elected to raise the action in the Court of Session and he should not be “deprived” of that choice.

However, on the assumption that the motion was competent, the judge held that it was not appropriate to remit the case to the sheriff court.

In a written opinion, Lord Boyd of Duncansby said: “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.”

The judge’s view was that, at this stage any motion to remit to a local sheriff court or the new Sheriff Personal Injuries Court must still apply the principles outlined in McIntosh.

In his opinion in McIntosh Lord Hope 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 continued: “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.”

Lord Boyd added: “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.”