(1)Subject to subsection (4) below, the Court of Session or the sheriff (“the court”) may, on an application made after a relevant difference has arisen, order that section 6 above shall not apply as respects that difference.
(2)No such order shall be made unless the court is satisfied that it would not be detrimental to the interests of the consumer were the difference to be referred to arbitration in pursuance of the arbitration agreement.
(3)In determining for the purposes of subsection (2) above whether there would be any detriment to the consumer’s interests, the court shall have regard to all factors appearing to be relevant, including, in particular, the availability of legal aid and the relative amounts of any expenses which he might incur—
(a)if the difference is referred to arbitration; and
(b)if it is determined by proceedings before a court.
(4)No order shall be made under subsection (1) above where, if (disregarding the arbitration agreement) the difference were to be resolved by civil proceedings in the sheriff court, the form of summary cause process to be used for the purposes of those proceedings would be that of a small claim.