Some key points from the radical proposals of the Gill review, and the initial reactions of the Society's civil procedure convener Kim Leslie
“Fast moving changes in the social and economic life of Scotland in recent decades have left us with a structure of civil justice that is seriously failing the nation. Reform is long overdue.”
With these words, Lord Gill sets the scene in the introduction to his Report of the Scottish Civil Courts Review, published on 30 September, for a set of proposals that would radically change the landscape of civil litigation in Scotland.
The service now provided, he continues, is slow, inefficient and expensive, procedures are antiquated and the range of remedies inadequate. Public confidence is being eroded. Fairness, incorruptibility and expertise will have little significance if the system cannot deliver. For years the Court of Session has been run on principles of crisis management.
Much more in the same vein could be taken from the Lord Justice Clerk’s introduction as setting the scene for what follows. Perhaps this is the key passage to herald his conclusions: “The root of the civil justice problem is that Scotland, uniquely among the major jurisdictions of the British Isles, has no proper hierarchy of civil courts at first instance or at appellate level. It has a flat, two-level structure of first instance courts whose jurisdictions for the most part overlap. It has only one appellate court, to which most litigants can appeal without leave.”
Some highlights from his recommendations appear in the panel opposite. These are only a selection from a two-volume, 15-chapter, 664-page report containing 206 recommendations for the more efficient and effective dispensing of civil justice.
“Positive, very positive to it”, is how Kim Leslie, convener of the Law Society of Scotland’s Civil Procedure Committee, sums up her reaction to the report. “We’re pleased to see that there are a number of things that the Society has responded to that have been given due consideration and feature within his proposals.”
Asked if she accepts his analysis that the current system can no longer deliver, she responds: “He’s done a huge amount of consultation, and we’ve got to recognise that if that is the response he’s getting from the public, the system is failing.” If there is a tendency for those used to the system to become tolerant of it and accept the way it is, she adds, this review had the clear remit of taking a good look to see whether it is still fit for purpose.
While by no means all of the Society’s representations have been adopted, in a number of instances Lord Gill is seeking to achieve the same result by a different means; and Leslie recognises that in hearing submissions from a wide range of outside bodies the Review has the advantage of a broader perspective.
In fact the Society itself put in majority and a minority submissions, and some proposals from the latter are reflected in the report, such as the radical restriction of the Court of Session’s jurisdiction (the majority thought there should be research ahead of any major change). Leslie is relaxed about the differences. “The Society is there to promote the profession and represent its interests, but we are a broad church and inevitably you’re going to have polarised views on certain issues. What we seek to do is put the majority view and allow always the adjunct of the minority view to be heard.” She suggests that the Government itself may want to commission research during such further consultation stages as take place.
The report itself has no doubt that the significant volume of low value litigation in the Court of Session is “an inappropriate and inefficient use of resources” (chapter 4, para 117). It is a fundamental principle for the Review that cases should be heard at the appropriate level of the court hierarchy. Despite the pleas of those who believe that the court has established itself as a centre of expertise in personal injury actions, therefore, the jurisdictional threshold is proposed to be set at a level to which sums concluded for are unlikely to be artificially raised. The effect, it is believed, would be to reduce the number of actions raised in the Court of Session by around 64%.
The recommendation “cannot be viewed in isolation”: it goes hand in hand with the introduction of specialist sheriffs and a system of active case management. Further, accepting the case for a centralised, specialist personal injury court, the Review would create an all-Scotland personal injury jurisdiction for Edinburgh Sheriff Court – with the ability to hold jury trials, which Gill regards as fulfilling a useful function in keeping levels of damages in line with public expectations. But parties who wished to seek compensation locally could still do so, with a designated specialist sheriff available to hear their action – but no option of a civil jury.
A personal injury lawyer herself, Leslie is pleased that the discipline has been recognised as a special class: “you have a one-off user of the courts against a frequent user, and the might of the insurance industry who have less limited resources, so I think there was some recognition that there needs to be a level playing field for those types of actions”. She also welcomes the proposal that use of pre-action protocols would become mandatory – not all insurers are currently signed up.
The implications for the bar of the jurisdictional changes are not directly addressed. There would still be a likely concentration of work in Edinburgh, but it remains to be seen how practice regarding sanction for counsel would develop. The Faculty of Advocates had still to issue a considered response when the Journal went to press.
Despite the strong representations of, for example, family, environmental and intellectual property lawyers, we are not likely to see other specialist courts even at sheriff level: in line with the Society’s own submission, and while making it clear that there remains a necessary role for the generalist, the review promotes specialism of individual judges as the most economic and efficient use of resources. Thus even the formal division of the sheriff court into civil and criminal branches, an idea much discussed in order to avoid the disruption to civil business due to criminal work receiving priority, is not favoured, as leading to loss of flexibility. On the other hand, the proposal for active case management makes an element of judicial specialism positively desirable: the review is impressed with evidence that it works in the Glasgow commercial court because the sheriffs have the experience that commands the confidence and respect of solicitors there.
Turning to the lower end of the spectrum of sheriff court work, the proposal for a new tier of “district judges” reflects another of the Society’s submissions. It seems that Scotland is unusual in not having had such a third tier, and this is Gill’s answer to the search for a forum in which lower value disputes can be heard under a procedure kept as simple as possible. “This would also promote the development of specialisation at shrieval level while maintaining, where practicable, the principle of access to local justice” (chapter 4, para 176). Adding a summary criminal jurisdiction would also “lessen the impact of summary crime on ordinary civil business and provide a better service in lower value cases”.
Who would district judges be? “We consider that the office… would be attractive to practitioners with experience of advising and representing clients on the range of disputes falling within the jurisdiction of the district judge,… such as family matters and the welfare of children, contractual and consumer disputes, housing issues, lower value personal injury claims including less serious road traffic accidents and problems relating to debt. We think that practitioners in these areas would bring a wealth of experience and a problem solving approach to the resolution of disputes. They would have a clear understanding of the law relating to the parties’ competing claims yet would be able to conduct proceedings with a degree of pragmatism”, the report states (para 178).
The Society thought there was a danger in assuming that court procedures could be designed to enable unrepresented litigants to participate; but the Review explicitly recommends that “plain English” rules “should be drafted for party litigants rather than practitioners” (chapter 5, para 131). Aids such as information packs, in-court mediation and the allowing of (unpaid) “McKenzie friends”, as well as judicial steering via case management, are proposed to provide possible backup.
While on the subject of judges, the report has sprung one more major surprise, at least to the Society: it deplores the appointment of temporary and part time judges from the ranks of practising lawyers (and also the extent to which they are currently relied on). The Society described part time judges as “part of the fabric of the system”, but to Gill the problems of public perception of someone arguing cases in court one week and sitting in judgment the next, the difficulties in programming continued cases, and the incompatibility of part-timers with the principles of judicial continuity and case management, mean that they should only be used in emergencies – and never appointed form the ranksof those currentlyin practice.
“That was a surprise to see that, and again it’s a real perception issue, isn’t it? And I absolutely see what the thinking behind it is”, Leslie comments, while pointing out, as Gill himself recognises, that it is not a change that can be achieved overnight.
Access to justice has been a constant theme of the Society’s representations to Government in recent times. Overall, Leslie gives the Review good marks in this respect: “It’s a very comprehensive review and I see there being a real opportunity for improvements in the system.” In addition to the district court measures, she believes that the recommendations for specialist sheriffs, for a docket system under which the same judge would normally deal with a case from beginning to end, for conducting case management hearings by telephone or video conference (thus involving thesolicitor most familiar with a case, rather than a correspondent), and that further work be done on the shortfall between outlays incurred and recoverable expenses, would all lead to improvements in case handling and/or a reduction in the deterrent factor currently presented by the prospectof litigation.
And while the Review has not been able to consider fully the issues of costs and funding, other ideas that attract her support in this area are the introduction of sanction for instructing solicitor advocates in the sheriff court, and a tableof fees applying to counsel (and to solicitor advocates) for Court of Session work – the first time that any such scale, even if set out in terms of bands, would have been applied to counsel in the higher court.
Who dares to challenge?
Towards the end of his introduction Lord Gill throws down a gauntlet. “Our proposals should not be seen as a series of good ideas, the easiest and cheapest of which can be cherry-picked for the purposes of legislation”, he writes. “That course would simply perpetuate the ad hoc approach that has obstructed true progress in civil justice for so long. We put these proposals forward as an integrated solution.”
Getting his retaliation in first, he adds: “To those members of the profession who will be opposed to our proposals, we observe that two of the outstanding features of the legal profession are its resistance to change and its endless adaptability. The history of the abolition of the two-thirds rule, the two-counsel rule, the transfer of divorce jurisdiction to the sheriff court, the extension of rights of audience and the introduction of licensed conveyancing is a history of reforms that one or other branch of the profession saw at the time as roads to ruin; yet the profession has adjusted to them, often to its advantage.” He cites the increases of roughly 75% in the number of practising advocates and 40% in the case of solicitors, both since 1990, to support that last assertion.
Kim Leslie in effect agrees: “The one thing that I would say is that solicitors will adapt to whatever changes are implemented and it’s in everyone’s interests to be as open minded as they can be to these changes.”
No doubt the Scottish Government is busy doing its sums. Already debates on the report have been scheduled in the Parliament and in the profession. There will be much more to be said before we see actual results. Watch this space.
Civil Courts Review: some highlights
The Scottish Court Service should plan for the elimination of part time judicial resources, particularly in relation to lawyers still in practice.
A number of sheriffs in each sheriffdom should be designated as specialists in particular areas of practice.
A national Sheriff Appeal Court, comprising the sheriffs principal and others of equivalent rank, should be established to hear civil and summary criminal appeals, sitting locally for civil business and in Edinburgh for criminal. Further appeal would require leave.
The privative jurisdiction in the sheriff court should be raised to £150,000.
An all-Scotland jurisdiction for personal injury actions should be conferred on Edinburgh Sheriff Court, including the holding of civil jury trials.
The boundaries of sheriffdoms should be rationalised with those of other public authorities.
The office of district judge should be created to hear civil claims below £5,000, housing actions, and appeals and referrals from the children’s hearing, as well as summary criminal business.
Courts should have the power to control the conduct and pace of all cases before them, with the same judge, so far as practicable, taking all hearings of a case.
Lord Penrose’s recent recommendations for the Inner House should be implemented without delay.
The distinction between ordinary and petition procedure in the Court of Session, and between ordinary actions and summary applications in the sheriff court, should be abolished.
The court should not have power to compel parties to enter into alternative forms of dispute resolution, though parties should be encouraged to consider these.
It should be open to any party to make an offer in settlement before or during an action.
Pleadings should be in abbreviated form, with the docketed judge having power to decide whether further specification is required.
Parties should agree on a timetable for presenting evidence of submissions so that the most efficient use is made of court time.
Actions by party litigants should be open to review by a sheriff as to whether they disclose a stateable case, and barred from proceeding if not.
In-court advice services should be extended to most if not all sheriff courts.
McKenzie friends (unpaid) should be permitted if the court considers that such representation would be of assistance to the court.
Petitions for judicial review should require leave and should normally be brought within three months.
There should be a procedure for certifying an action as suitable for multi-party proceedings.
There should be a judicial table of fees for counsel in the Court of Session, and a sanctioning procedure for solicitor advocates in the sheriff court.
The office of auditor of court should be a salaried post.
A Civil Justice Council for Scotland should be established.