Subordinate Legislation
Draft Small Claims (Scotland) Amendment Order 2001<br />Draft Sheriff Courts (Scotland) Act 1971 (Privative Jurisdiction and Summary Cause) Order 2001
Our first agenda item deals with two draft orders. I refer members to the note by the clerk, J2/01/31/2, which sets out the background and procedure. I advise members that there is a small typing error in the first line of paragraph 3. The note reads "1998", but it should read "1988". Members should also note petition PE416, from the GMB union, which relates to the orders that we are considering. They will also note that additional papers and correspondence about the orders have been circulated. In addition, some late e-mails have arrived this morning. I also draw members' attention to parliamentary questions about the orders lodged by Brian Fitzpatrick, copies of which have also been circulated.
I am not required to declare an interest, but I shall do so. I declare, for the record, that I am a member of the GMB union.
The debate can last up to 90 minutes, although I do not think that that is likely. I shall call members to speak after the Deputy Minister for Justice has spoken. The committee will then decide whether it wants to recommend the orders, whether it wants further information or whether it does not want to recommend the orders.
I welcome the Deputy Minister for Justice, Iain Gray. Please speak to and move motions S1M-2424 and S1M-2425.
I will speak about the two orders together, as they are very much a package. The purpose of the orders is to increase the different financial limits, known as the jurisdiction limits, which apply to two of the three forms of civil court procedure in use in sheriff courts in Scotland. The increases are intended to improve local access to justice.
The draft Sheriff Courts (Scotland) Act 1971 (Privative Jurisdiction and Summary Cause) Order 2001 will increase both the privative jurisdiction of the sheriff court—the financial limit up to which proceedings must be brought in the sheriff court—and the summary cause limit from £1,500 to £5,000. That will give litigants access to summary cause procedure for cases up to the new limit of £5,000.
The draft Small Claims (Scotland) Amendment Order 2001 will increase the small claims limit from £750 to £1,500 and will exclude personal injury actions from the small claims procedure. That will benefit those who want to raise claims up to the new limit using that low-cost procedure, which is designed for litigants to use themselves. The removal of personal injury actions will further assist litigants by allowing access to appropriate procedures for those specific cases. In addition, the order will increase the present expenses limit for small claims in line with the increase in the value of the claims to which the procedure will apply.
With the committee's forbearance, I shall provide some details of the effect that the increases will have on the business and procedures of the sheriff court.
Ordinary cause procedure, which is a more formal procedure, would be available to litigants who wish to pursue claims for payment of money exceeding £5,000, and also for cases such as family actions, including actions of divorce and actions relating to parental rights and responsibilities, and for actions of interdict. Summary cause procedure, which is less formal and more closely timetabled, would be available to litigants who wish to pursue claims for sums exceeding £1,500 and up to £5,000, and also for certain non-monetary claims such as actions for recovery of possession of heritable property. Small claims procedure, which is informal, cheap and litigant-friendly, would be available to litigants who wish to pursue monetary claims up to £1,500.
Summary cause procedure as we now know it was introduced in the sheriff court in 1976. Its origins were in the Grant report, a royal commission report published in 1967. Enabling legislation was introduced by the Sheriff Courts (Scotland) Act 1971. The present summary cause and privative jurisdiction limits of £1,500 were fixed in 1988 when the small claims procedure was introduced.
In 1980, the Royal Commission on Legal Services in Scotland recommended the small claims procedure as follows:
"there should be a small claims procedure within the sheriff court which is sufficiently simple, cheap, quick and informal to encourage individual litigants to use it themselves without legal representation."
The basis for that recommendation is also contained in the Sheriff Courts (Scotland) Act 1971. The present jurisdiction limit for small claims has remained unaltered since the procedure was introduced in 1988.
The proposals to increase the jurisdiction limits in the sheriff court have been the subject of extensive consultation. In July 1998, the Lord Advocate, who at the time had policy responsibility for such matters, issued a consultation paper. The Lord Advocate sought views on a range of possible increases to jurisdiction limits; an option of forum for personal injury actions for sums that fell within the small claims limit; and the provision of an additional level of expenses for small claims that exceed £750.
Two hundred and forty-four copies of the consultation paper were issued and 53 responses were received. Those who responded are listed in the Executive note, of which members have a copy. The responses demonstrate the substantial support that exists to increase the jurisdiction limits in accordance with the provisions in the order.
A large majority of consultees favoured increasing the small claims limit to £1,500. A smaller number favoured an increase in line with inflation, which, at that time, would have produced a figure of approximately £1,200.
When the small claims procedure was introduced in 1988, a decision was taken to include actions for personal injury. At that time, it was recognised that potential problems might arise from the relative complexity and expense of the claims and that, in the light of experience, changes might have to be made. Research was commissioned to monitor the impact of the small claims procedure on personal injury claimants and litigation. The research report recommended providing a right to opt in to the small claims procedure. In the course of the consultation, views on that proposition were canvassed. However, such an amendment would require primary legislation.
The terms of the research and the nature of many of the responses suggested that it was necessary to take a decision about the future of small claims for personal injury. We took regard of those findings and of the position in England and Wales, where personal injury actions were excluded from recent increases in small claims jurisdiction. The small claims order that is before the committee today provides for the exclusion of personal injury actions from the small claims procedure. The exclusion addresses many of the criticisms in the research report. It also means that litigants who require to pursue such claims will benefit from having the right to apply for legal aid.
At present, no expenses are payable for claims below £200 and expenses for claims up to £750 are limited to £75. The order proposes increasing the £75 limit to £100 for claims up to £1,000 and for an additional level of expenses to be introduced for claims that exceed £1,000. Consultees broadly supported those proposed increases in the expenses limits, although differing views were expressed as to how the limit should be applied.
The views of consultees on the increase to the summary cause and privative jurisdiction limits ran across the range of values that were offered in the consultation paper. Some consultees favoured an increase to £3,000, while others suggested an increase as high as £50,000. It was also suggested that consideration be given to prescribing different limits for summary cause and privative jurisdiction limits, with the privative jurisdiction limits being increased to £50,000. That was the view of sheriff principals, who saw that that would remove more low-value cases from the Court of Session. That proposal would also require primary legislation.
It seems to me that the passage of time alone justifies the changes proposed, when one bears in mind that the existing limit has been in place since 1988. Taking into account the mixed views of respondents, as shown in the consultation, and the position elsewhere, where the equivalent limits are much higher than those that are proposed today, I consider £5,000 to be the right level at which to set the limit. That is because that figure, being at the lower end of the range, is around the middle of the range set out in consultation responses, with the same number of consultees seeking increases above and below that figure.
It seems to me that those increases in the jurisdiction limits are justified. Many people believe that the increases were warranted before now. The increases may not satisfy everyone, but they reflect accurately the views that were expressed by the consultees who responded to the consultation.
The committee may know that the orders were first presented for consideration last year but, before the orders were debated, ministers were persuaded that the conditions for change were not right. In particular, the point was made that an on-going review of the procedure rules for summary cause and small claims should first be completed. That review is now complete and it is my intention to change the jurisdiction limits at the same time that the new rules come into force, which is likely to be April of next year. I am satisfied that the time is right to make the changes. They will benefit the large number of litigants who will, as a result, have access to the informal, quick and relatively inexpensive court procedures for summary causes and small claims.
I appreciate that the committee has before it the GMB union's petition. When I come to close, I will be happy to deal with issues regarding the petition that may be raised in the debate.
I conclude by re-emphasising that the purpose of the orders is to improve access to justice and to provide quick and inexpensive outcomes for claimants.
I move,
That the Justice 2 Committee recommends that the draft Small Claims (Scotland) Amendment Order 2001 be approved.
That the Justice 2 Committee recommends that the draft Sheriff Courts (Scotland) Act 1971 (Privative Jurisdiction and Summary Cause) Order 2001 be approved.
Before we begin, members should bear in mind that we are involved in a debate and not in an evidence-taking session.
The background note that members have on the orders sets out
"On 21 February, the then Deputy Minister for Justice, Angus MacKay wrote to the then Convener of the Committee, Roseanna Cunningham, indicating that the Executive no longer intended to move the Orders (JH/00/7/10). He had received late notice of concerns requiring further investigation before the Orders could be implemented."
Has there been continuity in the investigation of late notice of concerns?
Is the convener looking for a response? I am not sure whether I can respond to your question now, or whether you want me to sum up at the end of the debate. However, I can answer the question.
If you could.
The key concerns that came into play at the time that the orders were previously laid before the Justice and Home Affairs Committee were concerns about the scale of the solicitors' fees that would apply in summary cause cases and about the table of recoverable expenses.
Progress has been made since then and that leads us to believe that the time is right to return to the orders. That position is also summarised in the Law Society of Scotland's letter to the committee. It addresses those two points. First, the Law Society sets out that:
"it is important to add however that in our view it will be essential that successful parties in Summary Cause litigation are not penalised by being unable to recover the cost of bringing the litigation from the unsuccessful party."
To that end, we will be making full representations on the summary cause fees table to the Lord President's advisory committee on fees, prior to our meeting with that committee on 17 December.
Secondly, the society says that it now feels able to support the changes. In paragraph 2, it says:
"Following a comprehensive review of the Summary Cause Rules by the Sheriff Court Rules Council, we are now satisfied that our concerns in relation to Summary Cause procedure have been addressed."
The key point is that the scale of fees must follow the change to the jurisdiction limits that are proposed in the privative jurisdiction and summary cause order. In its letter, the Law Society of Scotland is expressing confidence that that will happen. I have given a commitment that the new orders will not come into force until the new rules and the scale of fees that flows from them come into force.
Those were the two key concerns when the orders were previously laid. Those have now been addressed, which is why we are returning to the orders and laying them again.
I realise that this is supposed to be a debate, but in some ways we are asking questions of the minister.
I was interested in the issue that he raised about the exclusion of personal injury claims. Most of us were receiving e-mails, faxes and phone calls about that issue up until last night. Will he clarify when the exclusion will be effected in legislation and when the details will be available to those who are involved?
I will pick up on one of the points raised by the GMB. So much of all this comes back to money. The GMB claims in its submission to committee members that some £40 million that was earmarked for the increased resources necessary for personal injury cases has been handed back to the Executive, because of the possible increase in human rights cases. Will the minister confirm whether the money has changed hands? What is the Executive making available for personal injury claims?
On the last point, I am not aware of that sum of money having been earmarked for personal injury claims and handed back. I think the point made in the petition is that £40 million of resource for the court system had been set aside to deal with human rights cases, but has not been required. The point was a general one about additional resource having been made available to the courts and not having been used. That is my understanding of the point that is made, although the petition came to us very late—as I know it did to the committee.
I will make two points about personal injury claims. When the orders come into force, the first change will be that personal injuries will be removed from the small claims procedure. The key advantage to litigants will be that they will become eligible to apply for legal aid to pursue those claims. The second change is that the orders will allow for special rules for personal injury claims within summary cause procedure. That will have an impact on the kind of expenses that become recoverable. That will mean, for example, that the requirement to seek expert medical evidence will become a recoverable expense in personal injury cases taken under summary cause procedure.
What are the implications for the legal aid budget?
We have considered that and it seems to us that the impact on the legal aid budget will not be so great that it cannot be dealt with within the current budget. I make the point that I always make when we discuss legal aid: the legal aid budget is demand-led, so if the changes lead to further calls being made on the legal aid budget, those calls will be met.
Personal injury claims are the nub of the matter. The minister has alleviated some of the concerns. I would be interested if the minister, at some juncture, could talk us through the steps that would be taken in a personal injury claim of an estimated value of £4,000 that results from an accident that someone has had in the course of their employment. I ask him to outline how the claim would be pursued, the type of action under which it would be pursued, the expenses that would be available and the availability of legal aid. That would provide reassurance.
There are other points. First, the Court of Session's traditional function has been not only to make determinations on individual actions; it also helps to formulate the law of Scotland. If a great number of actions are taken out of the Court of Session and go to the sheriff court, that invaluable function might be, if not lost, diluted. That is a concern.
The number of cases that would be called in sheriff courts throughout Scotland is another concern. Sheriff court timetables have to give priority to criminal matters and to certain civil matters, for example custody cases involving young children. That is perfectly understandable. What will be the time and resource consequences for the sheriff courts in that respect, because that must be considered?
There is also the point of legal principle, which has been upheld in Scotland for many years, that the party to an action should be able to determine under which jurisdiction the action is held—that is, whether it is held in the sheriff court or the Court of Session. That principle was upheld as recently as 1990 in a judgment by Lord President Hope. Although what is being proposed has attractions in respect of the administration of the law, it appears that there are ways in which principles are being diluted, and I question whether that is desirable.
I will start with the final point and go backwards. No principle is being diluted, because what we are discussing is a change to the jurisdiction limits, which exist already. We are discussing the point at which they are set, so I do not see that we are changing a fundamental principle.
You asked how a claim to the value of £4,000 would be handled. It would be handled under the new orders under summary cause in the sheriff court. Having said that, if the case was particularly complex or difficult—and the point is made in the petition and probably elsewhere that claims of lower value can be just as complex and difficult as large claims—there is the possibility of a remit first to ordinary cause procedure, and to the Court of Session, if the court considered that to be appropriate. That addresses the point about the right to have the case heard in the court in which the pursuer wants it to be heard.
The point was made about the importance of the Court of Session in making the law of Scotland. That is correct. The issue is how many cases relating to claims of between £1,500 and £5,000 are heard and defended in the Court of Session. As far as we can find, the number per year is in the low 20s. Something like 0.5 per cent of personal injury cases fall into that category, so the particular group of cases that we are talking about—those that help to make the law—is very small. Most of the cases that are defended and heard in the Court of Session are of significantly higher value than £5,000. Indeed, the other aspect of the Court of Session that sometimes—
I am sorry to interrupt you, but I want to stop you on that point and ask a question about the numbers that you have given us. That information is useful, but what if we add the number of cases that settle for less than £5,000? The petitioners made a point with which the committee has a lot of sympathy, about the right to negotiate a settlement by going to the Court of Session. The petitioners' main point is that that right would be lost. You cannot examine only the number of cases that are defended and concluded in the Court of Session; you must also consider the cases that are lodged and settled.
There are two different points. I was responding to Mr Aitken's point about the role of the Court of Session in developing the law of Scotland by taking its decisions. My point is that the effect of passing the order will be small, because the number of cases that fall into the category of having the potential to change the law is very small. Your point is different, and it is important.
There is no doubt that the vast majority of cases of the kind that we are discussing are settled. That makes it difficult to obtain evidence on what occurs in those cases and to judge what the impact of change might be. The vast majority of outcomes involve a private arrangement between the parties.
There is concern that, although the cases raised in the Court of Session are mostly of significantly greater value than £5,000, many of them are settled for less than that amount. If that is the situation, concern about the scale of recoverable expenses—what could be recovered and the costs that would have to be carried by the litigant or a trade union that backed the claim—could have an impact on the outcome. If a case was raised in the Court of Session but settled below the limits, the scale of fees and recoverable expenses that would normally apply would be the Court of Session scale. That would be the situation unless the opponent raised an action with the court to have a lower scale of expenses applied. The evidence that we have suggests that that hardly ever happens. There is no evidence that the court would as a matter of course agree to such an action.
I am not convinced that the central concern about cases being raised in the Court of Session but settled for less than £5,000—the privative jurisdiction limit—would have the impact that has been suggested. However, I return to the point that I made initially: it is very difficult to obtain evidence on what happens in such cases. If the Parliament approves the order, we will commission a monitoring and research project that could cover the first 12 months of operation of the new jurisdiction limits. For the first time, we would endeavour to find a way of obtaining evidence on what happens in cases that are settled as well as in cases that are defended. That might prove difficult. It would require consultation with the legal firms that do the work and the examination of cases that have, for example, been anonymised. Nonetheless, I believe that we must address the issue, because at the moment the private nature of settlements means that we do not have the evidence base that we need.
I want to return to the issue of personal injury claims so that I can be satisfied that the measure will not in any way be prejudicial to those. A claim for £4,000 would be dealt with under the summary cause procedure.
Yes.
Legal aid would be available to cover the legal expenses that were claimable. What are you attempting to do here? Are you attempting to set up a situation similar to that which prevails in England? I would be greatly reassured if you could deal with those points.
Bill Aitken is correct to say that legal aid would be available. The scale of expenses that would apply would be the summary cause scale. As I said, the letter that the committee has received from the Law Society of Scotland makes it clear that it intends to ensure that the existing provision is changed in a way that does not disadvantage litigants. It is not possible to agree that before considering the orders, because the scale of fees must flow from the jurisdiction limits.
I repeat that there will be a special procedure and a special table of fees and recoverable expenses for personal injury claims, which will allow for expenses that are particular to that kind of case—for example, the requirement to seek medical evidence—to be included and, therefore, recoverable. The orders go to some length to address the concerns that lie behind Mr Aitken's question.
The orders are not driven by the situation in England and Wales, which is different, although in my opening remarks, I referred to the middle-value claim limit, which is comparable to summary cause procedure in England and Wales, which stands at £15,000. We are proposing a privative jurisdiction limit that is significantly lower.
But, in England and Wales, personal injury claims have been removed from the equation, in a simplified procedure.
Yes, in England and Wales, personal injury claims have been removed from the small claims procedure and we propose to do the same. That will allow people to apply for legal aid and it will mean that the scale of fees will not be the restricted scale of fees that applies to the small claims procedure.
Thank you—that is very helpful.
It is probably worth while my saying at this stage that I am minded to oppose these orders, although I am prepared to be persuaded by the debate and the minister's answers. My reason for opposing the orders relates to concerns that have been raised about the consultation process. It seems unusual that at this stage and at the second attempt to make progress with the orders, we still find ourselves bogged down by considerable misunderstandings over technical issues. I would have expected that by this stage things would be relatively straightforward and would not involve a huge amount of debate.
Like everyone else, I have received a lot of information over the past 24 and 48 hours—right up until 15 minutes before I came to the committee. I would point particularly to a letter from the solicitors for the GMB. It says:
"Our union clients are, as you will see from their Petition, very concerned about the effect of the proposed Order and in particular … the lack of consultation with themselves as major users of the Court of Session."
I find it slightly baffling that the union should say that and I am in two minds as to why it should do so. Is it that the union had a responsibility to take the initiative and make its case heard? Yes, of course, it had a role in doing that. Or, is it that the Executive—in this as in other issues—is consulting far too narrow a circle of regular consultees? I find it astonishing that, after all this period and after two rounds of consultation, the GMB still says that it has not been consulted.
If the GMB is correct in saying that it is a major user of the Court of Session for personal injury cases, the minister and his colleagues in the Executive ought to have anticipated the need to consult the GMB. That raises significant questions about the consultation process. I give notice that, if unanswered questions remain after today's debate, it is likely that I will raise the issue again in Parliament, so that it can be more widely explored and discussed. However, if I have misunderstood, or if the GMB has in some way failed properly to represent its members on these issues, I am perfectly prepared to be persuaded today. I will be interested to hear what the minister has to say.
I, too, find the comments in the GMB petition on the lack of consultation rather puzzling. As the convener made clear, the consultation process took place some time ago, in 1998, when 244 consultation papers were sent out. We received 53 responses, including one from the Scottish Trades Union Congress. I have the covering letter to that response, which is on GMB notepaper and was signed by the GMB's legal officer. It is clear that the GMB participated in that consultation, although its response was part of a collective response from the STUC.
It is unfortunate that the long time that has elapsed between the consultation and reconsideration of the orders may have made it unclear that our action relates to that consultation. I have some sympathy with that view, so I will explain why it has taken so long to act on the 1998 consultation.
The then Lord Advocate was responsible for the policy and launched the consultation. By the time that the responses had been received, the UK Government had already stopped legislating on matters that were to be devolved under the Scotland Act 1998, which was then imminent. Therefore, the Lord Advocate did not proceed with the legislation as he had intended. After the Scottish Parliament was established, progress was made on the orders and they were laid before the Parliament.
As we have discussed, the orders were withdrawn at that stage because of concerns about solicitors' fees and the scale of recoverable expenses for summary cause procedure. As a review of the rules has now been conducted and the Law Society of Scotland has been assured that solicitors' fees and recoverable expenses will be dealt with—as it says in its letter to the committee—the time is right to make the orders. However, three years have elapsed in the interim and the GMB may not have connected the previous consultation with the current action.
In the light of the difficulty that appears to have arisen on consultation, is the minister prepared to undertake on his part or that of his Executive colleagues to consider the consultation processes that the Executive carries out, to prevent a recurrence of such a situation? If views conflict between a major user of the system—in this case, the GMB—and you, we should understand why and ensure that that does not recur, because such situations are generally not helpful.
I am happy to take that point. We are always prepared to consider the effectiveness of our consultation. I repeat that the delay that was caused by the passing of the Scotland Act 1998 may be a factor. I hope that that will not apply in future. I take Mr Stevenson's point.
I accept the minister's point too.
I will move on from consultation. Minister, you said en passant to Bill Aitken that if the orders were passed, they would be monitored over, say, the next 12 months. Will you give more detail on that monitoring? Have guidelines been produced for that? How will the civilian population and not just the legal profession be involved in that?
If the changes are made, we will need to monitor their effect on the distribution of civil business in the sheriff court and between the sheriff court and the Court of Session. It is also important to consider the effectiveness of the new summary cause and small claim rules. I suggest that the mechanism for doing that will involve the Scottish Executive's central research unit. I intend to instruct that unit to produce early research into the outcome of the jurisdiction changes and their effects on the sheriff court and the Court of Session.
I said that research would be conducted over the first 12 months of the operation of the rules. We should be clear that that will not mean 12 months from now.
I have also said that we need to commission research to evaluate the working of the new rules on summary cause and small claims and the effect that they have not only on claims settled in court but—as the convener said—on those that are settled out of court, which are, in fact, the vast majority of claims. My one caveat is that that is an evidence base that has not been developed before—you will appreciate that there are some difficulties because of confidentiality. However, it should not be beyond the wit of the central research unit to identify a way of gathering that information. I expect the unit to consider the shift from ordinary cause to summary cause, from summary cause to small claim in the sheriff court and from the Court of Session to the sheriff court; and to examine how the new rules are operating. In addition, there will be research into the impact or effect on settled cases.
Will that be reported back to Parliament?
Yes.
And, if necessary, will another review take place?
My intention is that the review will be published and laid before Parliament. I would expect the committee to return to the matter at that time and, if the review had not appeared, to ask where it was.
I refer you to the long list of consultees to the original consultation. I did not see a consensus emerging on a limit of £5,000; more people were in favour of a limit of £3,000. It troubles me that severe concerns have been expressed to the committee so late in the day by many firms of solicitors, people who are active in the field of personal injury and the petitioner. A central theme of many of the submissions is that people would have signed up to an inflationary increase. I have no idea what that would have turned out to be. Can you address any of those points?
An inflationary increase is difficult to calculate. It depends on the method you use for the calculation, but it would be honest to say that an inflationary increase—even at 2001 levels—would lead to a limit of less than £5,000. It would perhaps be of the order of £3,000—that is an approximation, though, and I would not like it to be regarded as an exact calculation. We propose an increase that is somewhat above an inflationary increase. I make two points on that. First, it provides some headroom in future, as the value of money changes, so that the limits do not become out of date almost immediately. I suppose an alternative approach would have been to change the limits annually. That would not be the proper way to go on a decision that—as we have seen this morning—is important and difficult and ought to be made for a reasonable period.
Secondly, the intention is not particularly to shift cases from the Court of Session to the sheriff court but rather to shift the balance within the sheriff court between ordinary cause procedure, summary cause procedure and small claims procedure. It is our view that summary cause procedure is a litigant-friendly and, most important, timetabled procedure, which allows the relatively quick settlement of claims. Perhaps I will return to that. Your point is entirely fair, convener, that there was no consensus on what the limit should be. The table in your paper of responses on summary cause and privative jurisdiction limits presents that quite graphically.
The limits in the responses ranged from £3,000 to £50,000 and, although we do not have a consensus, we have chosen something like the median. The most important point is that our proposal is at the bottom end of the range of limits that was considered, although it is not the lowest, which was £3,000. That is how we chose to deal with the responses.
The change in the limits for the summary cause procedure is meant not only to take account of inflation, but to shift the balance in the sheriff courts. One purpose of that is to give more litigants access to a procedure that is timetabled. Such litigants can be certain that their claim will have an outcome in a given time. The time that procedures take is a concern. I think that the committee is considering a petition on cases of asbestosis and how they are dealt with in the Court of Session. A fundamental concern about that matter—which I think is raised in the petition—is that claims in the Court of Session take an inordinate length of time. One purpose of setting a limit of £5,000 is to have more cases considered by a procedure that is timetabled and therefore quicker. That will give better access to justice and better and quicker outcomes for litigants.
Some consultees made the point that whatever limit is agreed, the additional work will be done in the sheriff courts. Those consultees would not be happy to sign up for a new limit or an increased number of cases in the sheriff courts, unless there were additional sheriffs and courtrooms. That point has not been addressed.
The point was made that many of the claims that we are discussing are settled. We believe that the main effect of the changes in the sheriff courts will be to shift the balance between the three different procedures that are available in sheriff courts. The overall outcomes on work will not be extreme. The Scottish Court Service is aware of the orders and is trying to plan accordingly. As I said in response to Mrs Ewing, it is important that we monitor the effect of the orders. If the research shows that they are imposing a new and unacceptable burden, we will have to address it. However, we believe that such a burden will not come about.
The committee received the background papers only recently and has had only the past couple of days to try to understand the procedures. The issue of recoverable expenses is detailed and deserves more time than we can devote to it. We talked earlier about legal aid. Are there circumstances in which, when legal aid is successfully applied for, the solicitor deducts from the settlement any expenses that the pursuer has to pay?
If someone is successful in their application for legal aid and in their claim, a contribution might be recoverable, depending on the legal aid rules.
Is it normal practice for solicitors to deduct the difference from the settlement?
The recoverable contribution is normally recovered from the opposition or defender.
But it is possible that the pursuer will still have a bill outstanding, even if they qualify for legal aid.
If the pursuer is successful and expenses are considered by the court to be recoverable, or they are recoverable as part of the private agreement, that should not happen. I make the point again that that is one of the concerns at the heart of what happens in settled cases, where the evidence is difficult to get at. When the committee considers the impact of the jurisdiction limits in a year from now, or a year from April, it will be crucial that there is some evidence to show whether or not that has happened. That will be central to the committee's deliberations at that time.
There are no further questions from members, so I invite the minister to wind up.
I do not want to take up too much of the committee's time. I tried to answer questions as we went along, but I have points to make on three key concerns that were raised by the petition and by other means. We discussed the first concern, which is consultation. I tried to show the committee that consultation took place, although I conceded that it took place some time ago, and I tried to explain the reason for that.
Secondly, there are two specific concerns about access to the Court of Session. On the first of those concerns—the right to have a case heard in the Court of Session—I pointed out that, in cases of particular complexity or difficulty, it is possible for cases to be remitted to the Court of Session. The other concern was about the effect of raising an issue in the Court of Session if it leads to a settlement that is below the privative jurisdiction level. The answer to that lies in the Law Society of Scotland's commitment that it will ensure that the summary cause fees table—once it is agreed by the Lord President's advisory committee—does not prejudice or penalise those who are involved in litigation in summary cause. I have also made the point that a case that is raised in the Court of Session and settled would normally recover expenses on the Court of Session scale, unless the defendant—the losing party—was to ask the court to apply the summary cause fees. As things stand at the moment, such a motion would be extremely unusual. The issue of access to the Court of Session will not have the effect that is feared.
The third concern is about the scale of fees for solicitors and expenses that can be recovered. That was the key issue that led to the orders being withdrawn previously. Since then, the review of the sheriff court rules has been completed. We have also introduced in the orders special rules for personal injury cases under summary cause, so that expenses such as those for medical evidence will be covered and recoverable.
I believe that the orders go some way to meeting those concerns. However, I have stated today that the Executive will monitor and evaluate the impact of the orders, should they be implemented, for around 12 months from their implementation, and that we will go to some lengths to include, as far as confidentiality and so on allows, the impact on cases that are settled, as well as those that are defended and heard.
Finally, I understand that the committee has three options this morning: it can recommend rejection or acceptance of the orders, or it can ask for further information. If further information were to come before the committee, by whatever means, we ask that the Executive be given sight of it and that we be given the opportunity to respond to and debate the points that are made.
The orders must be dealt with by 26 November, which is the date by which Parliament would expect us to make a recommendation. I realise that the issue is complex and has become controversial in the past few days. I am mindful that we must make an important decision. If members are not satisfied that they understand all the issues, or if they wish more information, they should not feel under pressure to make a decision today. We could deal with the matter at our next meeting—I will give members room, should they need it. There is a lot of paperwork—even I, as convener, have not had the chance to read all the information.
I have concerns about the letter from the Law Society of Scotland, which was presented to me this morning. In the society's original submission in 1998, £3,000 seemed to be its view on the upper limit. The letter does not address why the Law Society is now happy to recommend an upper limit of £5,000. Only the Law Society—not the minister—can answer that and I feel that it should do so.
The petitioner has raised a number of issues and is entitled to have an answer, whatever the committee recommends. It might not be possible to get answers to all the questions. I am particularly interested in the number of Court of Session cases that settle and I would like to find out whether it is possible to get those figures.
There are other issues, which perhaps only the petitioner can address. In spite of the explanation, there are diverse views about the consultation. The GMB makes it clear in its petition that it was not consulted. Members heard from the minister that a letter was received from the GMB. We need further clarification on that.
The matter is quite complex and it is not reasonable that we should be asked to make a determination on it today. A considerable volume of correspondence has been received by all members and, as Mr Stevenson testified, a letter was received as recently as 15 minutes before the start of the meeting.
The matter would benefit from some individual research by members, so that we can be satisfied that we are following the correct course of action. The decision would have far-reaching consequences for such claims and we must be entirely satisfied that, if we agree to raise the upper limits, we will not prejudice vulnerable litigants. I want another seven days to investigate the matter.
I sympathise with the comments of the convener and Bill Aitken.
The minister mentioned the petition from Frank Maguire on behalf of Clydeside Action on Asbestos. I would like that group to have the opportunity to comment—within the next week, so that we are not delayed unreasonably—on how it might benefit or be disadvantaged. The minister suggested that the group might benefit and I would like to hear its view.
I will not repeat what others have said, but I agree that another week would be helpful. The minister gave us answers to several questions. Having received the additional letter, I would like time to put all the information together so that we can feel confident about the decision that we take.
I sympathise with the concept of not taking a clear decision today. My only problem with that is that we might be inviting another load of material to arrive late the night before and early in the morning of the committee meeting. Is there a mechanism to ensure that the questions are addressed in next week's discussions?
I have great concerns about how we ended up in this position. With two days to go, we suddenly discover that there is a controversial order that needs to be discussed and about which lots of issues are being raised. Timetabling is a major concern—why do we have such a short time to get to the bottom of genuine concerns that have been raised by the public?
The minister has done a reasonable job of answering some of the questions. Nevertheless, the committee has not had time to consider the matter properly. If we decide to take a further seven days and if any more points need to be raised, we have to get the information quickly to allow us time to consider it before the next meeting.
Many of us have commitments. We are out and about doing other things and it is not always easy to gather information and find time to read it. If information does not arrive until Monday or first thing on Tuesday morning, that puts us in an invidious position. Any further information on the matter must get to us as soon as possible. I have not seen the letter from the Law Society to which the convener keeps referring, and I do not think that anyone else in the committee has seen it. Those are serious issues that must be addressed.
The orders were laid on 25 October and processed in exactly the same way as any other order, so there are no difficulties with that. The orders must be dealt with by 26 November so that Parliament can hear what the committee has to say. Parliament will make the decision; all that we are doing is giving Parliament the committee's view, which will be influential.
A lot of information has arrived in the past 48 hours, which is not enough time for members to take it all in. There are some questions in members' minds and this morning's session has been helpful.
As Margaret Ewing has rightly pointed out, I am not inviting another barrage of e-mails and correspondence. It is up to the public or firms of solicitors to contact members. However, I am clear that I have a responsibility to ensure that the questions that members have asked today are the right questions to ask. The GMB, which went to the trouble of petitioning the Public Petitions Committee, should have its questions answered. The letters that arrived late this morning should be put in order with a note to explain the main points. If members agree, that is how I propose to deal with the matter over the next weeks.
I do not want to prolong the discussion unnecessarily. However, on your point about a barrage of communication, I do not think that the committee needs any more information on the issues. The issues have been raised and we need time to consider them, the minister's responses and our decision. We do not need more people lobbying us and telling us what the issues are; we are clear about the issues. We are having difficulty with assimilating that information in such a short time.
That is helpful. Are we agreed?
Members indicated agreement.
Members will get a background note summarising that information. We might have to exchange correspondence in order to get the answers we are seeking. We will do that as quickly as possible. I will meet the clerks this week and it will be an agenda item for next week's meeting.
I thank the minister and his team.
I offer members a five-minute comfort break.
Meeting adjourned at 11:03.
On resuming—