Review of Civil Procedure and Practice (Hennessy)
Civil Procedure and Practice
PUBLISHER: W GREEN
To say that civil court procedure in Scotland is in a state of flux would be a massive understatement. The Gill Review in 2009 set out the pathway to reform, primary legislation followed and now we are experiencing a deluge of subsidiary instruments framed with a view to consigning to the dustbin of procedural history so many old certainties, quaint practices and indefensible mechanisms. Many would say “good riddance”, but only time will tell whether the alternatives now entering into force will prove to be workable and worthwhile.
The dilemma facing any author determined and brave enough to enter into this quagmire of adjectival law is deciding the right time to do so. It is of course a familiar dilemma for all legal authors, although for many of them the quagmire perhaps is not so deep. But Charles Hennessy has been lucky; he has found a window of opportunity in what he describes as “Scotland's tsunami”, namely, a lull in legislative activity running from spring 2018 until perhaps the middle of 2019, giving him a chance to set out the current state of play, without the risk of being immediately and seriously out of date.
Earlier editions of this book have always been aimed principally at law students and young practitioners, with a nod to more senior lawyers who might benefit from an update. Like those previous editions, this one is written very much from a practical standpoint, explaining the subject matter in a highly readable style. All the commonly-used procedures in both the sheriff court and Court of Session are covered, with useful sections of narrative preceding discussion of particular rules, with flow charts of the various steps in each procedure. For good and sound reasons, the book does not purport to be exhaustive, the reader being repeatedly pointed in the direction of source materials and fuller case law whenever considerations of emphasis and space come into play.
Among other areas of the subject matter, the post-Gill court structures are covered fully, with a useful account not only of what kind of cases are (or should be) litigated at each level but also of the practices each new court has started to develop. This is particularly true of the sections dealing with the All Scotland Personal Injury Court and Sheriff Appeal Court, both of which have now been in operation for several years. What is required of a practitioner in these new courts (and in the older commercial courts) is set out very clearly by the author, who demonstrates the changing nature of civil litigation in Scotland, with its emphasis on case management through judicial intervention. No one reading this book should doubt that things have moved on from the days when courts waited on practitioners to make progress (or not); and woe betide those lawyers and litigants who lose sight of that fact.
With so much happening, it is inevitable that some innovations have a big question mark hanging over them. The author does not hide his concern: indeed I doubt that anyone anticipated that the new simple procedure would spawn 85 pages of rules and over 150 pages of associated forms; and it is also a surprise to learn that there now at least eight ways of pursuing an action for personal injuries, depending on the various factors pertaining to each.
For the new practitioner due for the first time to conduct a debate, proof, PBA or jury trial, the respective chapters will be particularly useful. Not only is the basic court procedure fully discussed, but the reader is confronted with the key questions: why is the case to proceed in this way; what is likely to happen; and what are the possible consequences for the client? Tactical considerations are canvassed; and there is a separate chapter on the cost of it all.
Overall, the author is to be congratulated; he has managed to bring together in one (slimmish) volume the many strands of procedural law and practice which daily confront a litigator in our civil courts. Against a background of his many years in law practice and teaching, he has produced a work of great skill and practical utility.
(Sheriff) Charles N Stoddart