Yes. With the committee’s permission, I will begin by talking about the figures that the Government has used.
This matter goes back to the civil courts review. The critical figure is not the sum that is sued for but the settlement figure. Lawyers routinely inflate or—if you wish to use the word—exaggerate the sum that is sued for, because the court cannot award more than has been asked for. A nightmare for practitioners such as James Wolffe and myself is a judge saying, “I would have awarded such and such, but because the sum sued for was such and such, I cannot award that much.” As a result, the sum that is sued for is routinely around a third higher than the real value of the case. If the profession had known that civil servants were going to place such an emphasis on that, we might have adopted a different approach.
Originally, there were two sets of data. In the first set, which related to cases over a two-week period, only the sum that was sued for was looked at. After a certain scoping, it was found that around a third of those cases would have downshifted to the sheriff court under the proposed system.
The second set of data was produced by an insurer, whose response was based on its own files. It is fair to say that everyone who has looked at that data has done so with considerable reservations and caution. As the Scottish Parliament information centre briefing suggests, it is not clear whether that cohort is truly representative. Although the bill’s proponents seemed to want that data to be interrogated further, the Government told them that that was not possible because of confidentiality. Confidentiality might well attach to the names of the parties, but they could easily be redacted, and it is difficult to see on what other basis confidentiality could operate.
APIL commissioned its own research from Alex Quinn & Partners, which, as a firm of law accountants that routinely acts for both pursuers and defenders, does not hold the ring for any particular constituency. It looked at five or six firms that specialise in Court of Session work; they were told to submit all their cases over a period of a month, and those 53 cases formed a cohort and were followed through to their outcome. The details of that research have been sent to the Government and were attached to our submission to the Justice Committee, which took evidence yesterday.
Those figures are far more robust and reliable and can be interrogated. The only confidential aspect is the clients’ names, but other than those, we are quite happy to make the full details of those 53 cases available. Given that only two resulted in a settlement of over £150,000, we are looking at a downshift not of 80 but of 95 or 96 per cent.
It appears that a fear in the civil courts review is that pursuers’ firms will somehow subvert whatever legislation is made by simply exaggerating the sum that is sued for and thereby getting a ticket into the Court of Session. That is why—it is said—the limit should be as high as £150,000, which is much higher than that in any other jurisdiction in the United Kingdom and that in the Republic of Ireland.
The suggestion also seems to be that a pursuer’s firm could do that sort of thing with impunity. That is a misconception and a misrepresentation of the current situation, because, at the end of the day, the basis on which costs are awarded depends on the settlement figure.
I will give an example from the present system. In the case Brown v Sabre, which was heard last week in the Court of Session, the sum that was sued for was something like £15,000 and the case settled at £6,500. Lord Boyd’s decision was that the settlement figure indicated that the case should never have been brought in the Court of Session; he then reduced costs on the basis that it should have been raised in the sheriff court, and said that there would be no sanction for counsel. I do not directly know the personnel involved, but we can take it that the firm in question will not behave in that way again.
There is no doubt that there must be behavioural change. The proponents of the legislation are absolutely right to say that cases must be shifted out of the Court of Session because there are too many low-value cases in it. However, the limit is too high, and it means that the cases go straight from low value to high value. As I said yesterday to the Justice Committee, modesty is relative in every walk of life, but I suggest that, if you were to ask your constituents, “Is £50,000 a modest sum of money? Is £150,000 a modest sum of money?”, they would look at you as if you were mad. Our scoping suggests that the Government has consistently underestimated the downshift of cases.
We also think that the Government has overestimated the settlement rate of cases. When the settlement figure in the Court of Session was last checked in research carried out in 2008, it was found that 98 per cent of cases were settled, mainly at the door of the court. Certain procedural drivers for that settlement process just do not exist in the sheriff court. The first is the availability of counsel. Our position is not that there should be automatic sanction for counsel, but we feel that counsel should be sanctioned in appropriate cases. The fact is that they are a driver to settlement. In the Court of Session, there is a compulsory face-to-face meeting and a no-excuses, no-adjournment culture in which four days are allocated and people must be prepared and ready to turn up.
Our written submission to the Justice Committee highlights an analogous case—a low-value case in Hamilton sheriff court—that bounces around. Only one day was allocated to the case at the start of the process—the time is allocated about six months in advance—but when the case began, it became clear that a further two or three days were required. The day before those two or three days were due to commence, the parties were told that a criminal jury trial had run over and that the sheriff was obliged to deal with that, and the case had to call twice as a procedural hearing to get further dates allocated. The whole evidence-taking and submission procedure took over a year.
Every practitioner in the sheriff court knows that it is creaking under tremendous pressure, but the proposal is to pass the best part of 2,600 or 2,700 cases down to those courts without additional resources—and I wish to make it plain that this is about funding and resources. Our concern about the Government’s projections is that it appears to be throwing sixes at every point of the process. It is looking at the most optimistic downshift numbers—it appears to have ignored the April figures—and the most optimistic settlement figures. We think that the Government’s 80 per cent figure is an underestimate, but even if we were talking about 85 or 90 rather than 98 out of 100 cases, we would still need at least another five or six sheriffs.
I realise that I am speaking without written material, convener. Since we first saw the financial memorandum, we have been working on scopings and projections, which we would be happy to make available to the committee, if it would find that of interest.