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Civil justice: where next?

18 August 08

An abridged version of the keynote address delivered to the conference on civil justice held in Edinburgh on 20 June

by Lord Rodger of Earlsferry

This conference on “Delivering excellence in Scotland’s civil justice system” is being held in the light of the consultation paper published by Lord Gill’s Civil Justice Review. I would start by paying tribute to the huge amount of work that has clearly gone into the preparation of the paper and to the way in which it has provided so much information and helped to focus so many issues.

In the short time available, I can really do nothing more than touch on a few points which occurred to me when reading the consultation paper and some of the responses to it. Given my own personal experience, I shall concentrate for the most part on the Court of Session. But I certainly do not overlook the fact that the various employment, social security and other tribunals are, in many ways, the front line of the civil justice system for most people in the United Kingdom today, while the sheriff court, of course, handles the bulk of traditional litigation in Scotland. Nor does the fact that I do not address them specifically mean that I am unaware of the very great problems which people encounter as a result of the high cost of litigation and the substantial reduction in the availability of legal aid. These are plainly material factors.

It seems to me that the Review really has to confront two types of issue. First, there are fundamental issues about the nature of the civil justice system, and, secondly, there are more mundane practical questions about the delivery of legal services by the courts and the lawyers who appear in them. Because of time constraints, I shall pay more attention to the practical issues, although the answers to these must be shaped by the more fundamental issues.

A last resort?

The consultation paper itself poses a very basic question when it asks whether the policy should be that courts should be regarded as a resource of last resort. Perhaps wrongly, I have the impression that the authors would like the answer to be in the affirmative. In other words, everyone should be first required to go through some process by which they would, hopefully, settle their dispute without engaging the court system. There are elements of that approach in the Woolf procedural reforms.

While I see the case for extending the use of pre-litigation protocols, I confess that I am rather suspicious of any approach which treats the courts and judges as something to be avoided if a substitute can be found. That does not seem to me to be the kind of society which is guaranteed to citizens of the United Kingdom by article 6(1) of the European Convention on Human Rights: “In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Doubtless, the article is subject to interpretation, but fundamentally it envisages that the state must provide an independent and impartial tribunal, established by law, to which we can resort to have our civil disputes determined. Of course, if parties can settle their dispute, so much the better – they know that as well as anyone. But obliging parties to engage in some form of mediation, whether as a precondition to going to court or as a result of compulsion by the court, seems to me to be rather contrary to the spirit of the guarantee in article 6.

Leaving the Convention on one side, the provision of independent tribunals – courts – for the determination of civil disputes is surely just as vital to society as providing independent tribunals for determining criminal accusations. It is not an optional extra. Naturally, that leaves open what form any independent tribunal should take, and the availability of resources is a relevant factor. But I see no good ground for discouraging the use of the court system which should, one would have thought, be the best vehicle for achieving justice. Achieving justice, not simply getting a result, is what the policy aim must be.

Given the costs of litigation today, the state does not need to discourage people from going to court. Most individuals are already only too well aware that courts are expensive places and that, if you are financing the litigation yourself, you should think more than twice before getting involved in them. The need would be greater in the unlikely event of the court system being free or so cheap that people were liable to use it irresponsibly. As matters stand today, if people or companies come to court and the litigation is to be conducted by lawyers and can be financed, the courts should not act like a branch of the nanny state, but should treat litigants as responsible adults or businesses who, with the help of their legal advisers and, in particular, their insurers, can be expected to judge their own best interests. The courts have the power to award expenses as a means of penalising any abuses of the system.

The need for litigation

Moreover, society actually needs litigation. If you regard it as an evil, it is, at the very least, a necessary evil. Unless there continues to be a stream of litigation with decisions of high quality from the courts, individuals and businesses will lack guidance on all kinds of everyday situations. If I buy a piece of equipment and it does not work, but the seller offers to repair it, what are my rights? A difficult point, made somewhat easier, it is to be hoped, by the determination of two Scottish businesses to carry their dispute about a piece of farm equipment worth about £3,000 all the way from Jedburgh Sheriff Court to the House of Lords. The parties deserved not criticism for failing to settle, but the gratitude of anyone who advises consumers, from CABx onwards.

The need for decisions is just as important to public law, which is now the growth area in litigation. The Data Protection Act is an obvious example – along with the United Kingdom and Scottish freedom of information legislation. Only a line of authoritative decisions on such legislation is ever going to put flesh on the very abstract statutory bones and show how the system is actually meant to work in practice. In that way they perform a vital service for members of the public who would never dream of going near the courts, but who might want, for example, to obtain some information from their local authority which that authority was reluctant to give. In the field of public law, it may be that a change to the title and interest to sue requirement, in order to allow representative bodies to raise judicial review proceedings, would bring benefits to members of the public who could not afford to raise proceedings themselves.

As I have stressed on more than one occasion, looked at from the standpoint of the healthy development of our civil law, the problem in Scotland is not that we have too many cases, but that we have too few. Especially in an era of devolution, where more statutes may be unique to Scotland, it would in my view be bad public policy positively to discourage resort to the very courts whose decisions could provide the necessary guidance on their interpretation and application. If the Scottish courts are not to provide that guidance, where in the world is it to come from?

First instance

A related issue is the need to have a civil justice system which encourages the emergence of lawyers with the specialist knowledge which clients need and demand. The aim must surely be to encourage the development of a system which, inter alia, promotes the growth of expertise among practitioners in all kinds of fields. How this aim is best achieved is, in my view, an important question to be considered when formulating any future strategy.

Like other ancient countries, we have a court system which has not been planned, but has grown up over time. That explains, for example, why the jurisdictions of the Court of Session and the sheriff courts overlap to such a degree. But that very overlap requires us to confront very basic questions about why we have a Court of Session and the sheriff courts. What is the difference?

In the end, the only respectable explanation must be the simple one that more is to be demanded of the Court of Session and High Court judges. Where the jurisdictions of the two courts overlap, the Court of Session judges are expected to produce a superior output. This may indeed mean that they have to work longer hours. But, fundamentally, it means that, overall, the Court of Session judges will produce better decisions because they are, overall, of a higher quality. So the system for the selection of Court of Session judges should be aimed at ensuring, so far as possible, that the very best people are appointed. By that, I mean the most able, intellectually and legally, the most skilful members of the profession – whether men or women, black or white, straight or gay, sheriffs or practitioners, it does not matter, and no preferences should be given to members of any group.

What should these judges do? There have always been siren voices – sometimes within the court itself – suggesting that the Court of Session should be an appeal court only. I would reject any such suggestion.

There is, of course, room for discussion about the level of claims which should be brought in the Court of Session. Nevertheless, I am quite sure that there should continue to be a first instance court to which people can take their case in the expectation that it will be dealt with, straightaway, by a judge who is one of the best legal minds in the system. That is, unquestionably, the position in England with the commercial court, the companies court, the administrative court dealing with judicial review, etc. Precisely the same must apply in Scotland. Otherwise the Scottish court system will not be able to offer the standard of service which businesses expect from courts all over the world. Those with a choice will, quite rightly, take their business elsewhere. Surely, no one would want that. The real question is whether there should be further specialisation along the lines already established for commercial cases. Consideration could also be given to the feasibility of Outer House judges conducting proofs in Glasgow or elsewhere, if that would improve the service the court can provide.

Any suggestion that the Court of Session should do purely appellate work has the most far-reaching implications for the whole of the court system. Such a change would tend, I believe, to discourage, rather than encourage, the growth of expertise. Moreover, it is surely fanciful to assume that advocates or solicitor advocates could then be appointed to the Court of Session straight from the bar. So, in effect, any proposal for a purely appellate Court of Session is a proposal for a unified court system in which all new appointments would have to be made to the lower courts throughout Scotland. That is a possible system, but I very much doubt whether it would attract the best practitioners to the bench.

The burden of administration

But assume that a case is taken to court. It is vital that the dispute is determined efficiently and with due despatch. Although it is not a topic for discussion today, I confess that I have always been very sceptical of the changes made recently in England under which the judges undertake so much of the responsibility for running the courts. The Judiciary and Courts (Scotland) Bill before the Scottish Parliament proposes to introduce a somewhat similar system, with responsibility for running the courts removed from the Scottish Ministers and vested in the Lord President. The proposal has the support of the judges. It is for the Parliament to determine whether it is a good idea, in a democracy, to remove the primary responsibility for running such an important public service from elected ministers, responsible to the legislature, and pass it to unelected judges.

But leaving that fundamental political point on one side, it may be asked whether the resulting system is likely to be more efficient and so provide a better service to the public. The Lord President already has a very substantial administrative load, the Lord Justice Clerk a lesser load. Under the new system it seems likely that other judges would also have administrative responsibilities. Some judges are better administrators than others, but the simple fact is that most judges have no real training or experience in administration. Speaking personally, as Lord President, I should have been cautious, to say the least, about taking on additional administrative responsibilities in case they ate into the time available for my judicial work. In England it is not uncommon to find senior appeal judges spending at least two days out of their working week on administration. I doubt very much whether that is desirable. It would certainly be undesirable if ability in administration, as opposed to legal skills, ever came to be a significant factor in judicial appointments.

Putting extra administrative burdens on judges might, I fear, divert them from their key function of judging – which is, I suspect, what members of the public think they are paid to do. Even today, one of the complaints which the Review mentions is delay in producing judgments.

On that subject I think that there would be much to be said for a system under which cases were automatically put out for a hearing, after a set period – say, two months – if the judgment had not appeared in the meantime. The judge would then have to explain the reasons for the delay. I would have the same system for the appellate courts. It would not, in itself, be an answer to the problem of delays in producing judgments, but it would help to discourage unnecessary delays.

Efficiency in appeals

The consultation paper raises the possibility of introducing a system of leave to appeal to the Inner House. A system under which the Court of Appeal grants leave exists in England. I think that a similar system for appeals to the Inner House might well help, by eliminating appeals with no real prospect of success, and helping to deal with the problem of party litigants.

I am also in favour of proposals for improved timetabling in the Inner House. What is needed is to make sure both that the time allotted is no more than is reasonably necessary and that the case finishes within the time allowed. Part of the key lies in having clear and concise written cases set out in an easily readable format. I freely confess that I am a somewhat reluctant convert to the use of written cases. Although I remain very much in favour of oral hearings and oral advocacy, experience with written cases in the House of Lords has convinced me that they can significantly reduce the time a hearing takes, e.g. because counsel can simply rely on the written case for certain parts of their argument and so concentrate on the more important, or more difficult and controversial, aspects. If the system works in the House of Lords, I can see no reason why it should not work in the Court of Session, even if it involved a certain evolution in the way that cases are handled.

With written cases, it is easier for the court to lay down a strict timetable for the hearing, which has to be observed. In other words, if a case is down for two days, it gets two days and no more. It demands discipline from both counsel and judges. In particular, counsel have to divide up the available time by agreement so that it is shared fairly. In practice in the House of Lords, this causes no difficulty.

If such a system is to work, however, it is necessary that all the time allotted should actually be available for hearing the case. That means giving further thought to how incidental business, such as single bills in the Inner House, is handled. Could some be dealt with on paper? Do they all require to be heard by three judges? Those that do could be scheduled say, at 4 o’clock so as not to interfere with the day’s business.

Room for improvement

Finally, it occurs to me when I read Court of Session judgments that many judges spend an enormous amount of time simply recounting the submissions of the parties. This practice seems to be a recent development: the reports do not show Outer or Inner House judges doing this in the past. The practice seems more pronounced in Scottish cases than in cases from other jurisdictions which come before the House of Lords. It does not appear to serve any very useful purpose. What matters is not for the judge to tell the parties what counsel argued, but to tell them what the judge has decided in the light of the argument. So, in practice, everyone – including the parties and counsel in the case – passes over the paragraphs giving the argument without reading them and goes to the point where the actual decision begins. It therefore seems to me that there might well be scope for the judges to reduce the burden of work on themselves, and produce judgments more quickly, by summarising the arguments very much more shortly and concentrating on the point on which they have decided the case.

No system of civil justice is perfect. The Review provides a welcome opportunity for improving ours. What I have put forward are simply a few suggestions based on my own experience. I am conscious that they have a narrow focus, while the issues for the Review are far wider. Like everyone else involved in civil litigation, I look forward to seeing the recommendations which Lord Gill and his colleagues produce for improving the Scottish civil justice system.