Editors Blog
Digging the heels in
22 Jan 10
Is the Faculty's response to Gill just a predictable rearguard action?
Too radical by half? The Faculty of Advocates' response to the Gill review of the civil courts, published yesterday (click here for report), in effect takes this line. Is the response basically a predictable reaction from those who see their practice threatened, or have they identified real flaws in the proposals?
Most of the criticism is indeed directed at the proposed restructuring of the courts, with the net result of a 60+% reduction in Court of Session business, where most of the bar's work comes from. However in opening by supporting the "simple court structure" that currently exists, the Faculty is backing what Gill sees as the "root" of the current problem – that Scotland is unique in the British Isles in having no proper hierarchy of civil courts at first instance or appellate level.
Lord Gill criticises what is in effect a one-size-fits-all model which is both too open, in that litigants have a pretty much unrestricted choice of where to sue, and too limiting in that all actions have to follow much the same sort of process. He sees it as "self-evident" that cases should be directed to the lowest level at which they can competently be dealt with, and proposes additional judicial tiers to enable this to happen.
The Faculty is critical of work being moved out of the Court of Session by "displacement... and not by improved efficiency". That hardly does justice to Lord Gill's description of the current process of "crisis management" which characterises the way the court is run at present, and his aim of increasing efficiency through the use of specialist sheriffs and having cases allocated to designated judges to manage throughout their progress.
It is true that there is unease among personal injury lawyers, whose cases make up the bulk of Outer House business at present, over potential disruption to a system that by and large seems to work well for them and their clients. The question for debate is then whether the business would readily transfer en bloc to the PI court that Lord Gill proposes to set up in the sheriff court next door.
There is a valid point, which others have made, about when it would be safe to instruct counsel in cases that have quite high value but which would have to be taken in the sheriff court under Gill – i.e.when could you be sure that the expense would be recoverable if you win. Perhaps, as the Faculty argues, more work needs to be done on comparative costs of litigating in the respective courts – though it should not be beyond our wit to devise guidelines as to when counsel would be appropriate, or perhaps a procedure by which the question can be ruled on at an early stage.
But overall it seems to me that the Faculty's views fall into the "predictable" category – predictable enough that Lord Gill himself attempted to deal with them in advance, with his observation in his introduction that "two of the outstanding features of the legal profession are its resistance to change and its endless adaptability".