Fall in number of cases may not be the result of reforms, writes Garry Ferguson

The recent publication of the Civil Justice Statistics in Scotland suggests that a total of 73,640 cases were initiated during 2016-17. This represents a drop of 5 per cent from the previous year and an overall decrease of 44 per cent since 2008-9. Before 2008-9 there are no available reliable statistics due to inconsistencies in the way courts previously captured and recorded civil data.

The period of recording since 2008-9 has coincided with what has been described as arguably the greatest period of reform of civil litigation procedure in Scotland in more than a century. So do the latest statistics reflect the impact of these ongoing reforms? It is perhaps still too early to measure the effect of many of the reforms, a number of which are yet to be brought into practice. Implementation of justice reform is, for the most part, not a speedy process.

Perhaps one explanation can be found by a closer examination of the type of cases being brought before the civil courts. In 2008-9, a total of 131,639 cases were initiated in the Scottish civil courts. Of that figure, 95,883 cases related to debt, repossession or eviction proceedings. The latest figures show that, by 2016-17, that figure had dropped by more than 50 per cent, to 46,624. 2007-8 saw a global economic crisis.

It is an expected consequence of an economic crisis that the number of court actions brought before the civil courts will increase, particularly in respect of debt, repossession and eviction actions. Since 2008-9, there has been, in the main, a steady decline in the number of these types of actions being brought before the Scottish courts, which is consistent with the economic recovery since that time.

One exception is in respect of the number of eviction proceedings being raised which, while still significantly lower than in 2008-9, has witnessed an increase in cases being brought since 2012 -13, perhaps reflecting the measures to strengthen the protection for social sector tenants against eviction introduced by the Housing (Scotland) Act 2010, which came into effect in August 2012.

Another category of case which has witnessed an increase is personal injury cases. The figures for 2016-17 show a 20 per cent increase in personal injury cases since 2008-9, which contrasts with the overall trend.

However, the number of personal injury cases being brought has fluctuated on an annual basis, making identification of any particular trend difficult, albeit the 2016-17 statistics show a decline for the second consecutive year for the first time since publication of the figures resumed. This may, in part, result from the introduction of a compulsory protocol for personal injury claims up to a value of £25,000, which has resulted in many more claims resolving without the need for litigation.

With the imminent introduction of Qualified One Way Costs Shifting, which has the practical effect of removing the risk of the individual bringing the claim being held responsible for the other party’s costs, even if the claim is unsuccessful, there is potential for this trend to be reversed and for there to be a significant increase in the number of claims being brought.

In reality, the published statistics cover too short a time to enable the impact of any changes in legislation and court reform to be meaningfully assessed. l Garry Ferguson is a member of the Forum of Insurance Lawyers and a partner at BTO Solicitors LLP