News In Focus
30 September 2009
Take most actions to sheriff court, says Gill
Most civil actions in Scotland would be heard before sheriffs or a new level of "district judges", if recommendations by the Review of the Civil Courts are accepted.
The report of the review, carried out under the chairmanship of the Lord Justice Clerk Lord Gill, was published today after an investigation lasting two and a half years. Its 674 pages in 15 chapters contain over 200 recommendations designed to improve the running of the civil courts and make litigation a simpler and cheaper process for members of the public seeking to establish their rights.
Among the most radical proposals, a national Sheriff Appeal Court would be established to hear summary criminal appeals, and civil appeals from sheriffs and a new class of district judges. Sitting locally for civil appeals, or in Edinburgh for criminal appeals, it would comprise the current sheriffs principal and a small number of others of equivalent rank. Further appeal would be possible only with leave.
Part time out, district in
The proposed district judges would sit in the sheriff courts and would hear summary criminal business and civil claims of "modest value" of £5,000 or less, together with housing actions and referrals and appeals from children's hearings, and family actions. Procedural rules should be in plain English and kept as simple as possible.
Lord Gill disapproves of the current reliance on part time sheriffs and judges, saying that if they are to be used at all, it should be for emergencies only. Further, they should only be appointed from the ranks of retired judges and practitioners and not lawyers who also carry on a practice.
He also wants to see a number of designated specialist sheriffs in each sheriffdom, who would hear those cases coming within their areas of specialism. Although the priority given to criminal business has been identified as a principal cause of delay in civil cases, he does not propose a complete separation of civil and criminal business. Nor does he advocate specialist courts such as family courts, as the Family Law Association has campaigned for.
Court of Session limits
A major change in the distribution of business would be that no actions worth less than £150,000 could be raised in the Court of Session, though it would remain the sole court for more complex corporate matters, patents, tax cases and some devolution issues. It would remain able to hear family actions.
The most significant effect would be felt in personal injury actions, many of which currently take advantage of special procedure rules in the Court of Session, even if of quite low value. However the sheriff court is about to get equivalent rules, and Lord Gill proposes in addition that Edinburgh Sheriff Court should be given the power to hear such actions from all over Scotland – and to take civil jury cases.
A single procedure would operate in the Court of Session in place of the current ordinary and petition procedure, and in the sheriff court in place of ordinary and summary application procedure. In both courts, active judicial case management would operate with parties' solicitors discussing and proposing further procedure to the court. These hearings could be done by telephone or video conference, subject to safeguards.
Leave would be required for judicial review proceedings, and a three month time limit introduced.
Alternatives
On mediation and other forms of dispute resolution, the review rejects any compulsion as contrary to the citizen's right of access to the courts, but says that its proposals requiring observance of pre-action protocols, and case management, together with better availability of information and advice, should encourage parties to consider alternatives to litigation.
Sheriffs should be given a discretion to decide whether a party litigant's action discloses a stateable case and should be allowed to proceed.
In a chapter devoted to access to justice, the review proposes more "self help" advice and greater use of in-court advice services. Unpaid "McKenzie friends" should be permitted to speak on a party's behalf if the court thinks that would be of assistance.
Other proposals are designed to deal with delay in issuing judgments, establish a procedure for multi-party actions, and bring about further work on legal expenses.
First reactions
Welcoming the publication of the review, the Law Society of Scotland said its initial reaction to the review was that Lord Gill comprehensively addressed the key issues of creating a level playing field, predictable outcomes and access to legal advice.
Kim Leslie, convenor of the Society’s Civil Justice Committee, said: “Lord Gill has expertly reconciled the need for both local and specialist justice particularly with personal injury cases, family actions and business disputes, allowing actions to be raised in local sheriff courts or before a specialist judge.
“The Society will work positively with everyone involved with the review, as well as in any other area where we can make a difference to ensure that the system works for everyone.”
Martyn Evans, Director of Consumer Focus Scotland, said: "This review sets out a bold range of challenging but pragmatic recommendations. It gives a clear and prominent voice to the interests of citizens as users of our civil justice system. The prize set out by Lord Gill is a civil justice system fit for the 21st century. There is bound to be a great deal of debate over his proposals. We hope the interests of individual users of the civil justice system are given due consideration and weight in that debate alongside the interests of judges, lawyers and business.”
The Faculty of Advocates also welcomed the publication of the review, and said it would respond in more detail once it had had time to study its recommendations and the implications for the civil justice system. "It is a detailed report which requires a considered response, not a knee-jerk reaction", the Faculty said.
“The Faculty agrees that value for money and cost-effectiveness are important considerations but they are not paramount. The overriding reason for having an effective and efficient civil justice system is to ensure that everyone has access to high quality justice within a reasonable time.”
Click here to access the report of the review, and a synopsis.