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Good in parts - Faculty's verdict on Gill

21 January 2010

Serious doubts over the projected efficiency savings from the reforms recommended in Lord Gill's civil courts review have been expressed by the Faculty of Advocates.

In its 62 page response released today to the review's proposals published on 30 September, the Faculty affirms its support for many of the practical recommendations, which it thinks will bring substantial and cost-effective benefits to the administration of justice in Scotland.

However, it doubts whether the substantial cost involved in the proposed structural changes to the court hierarchy would increase efficiency or lead any other significant public benefit, particularly at a time of spending constraint.

National courts

Whereas Scotland currently has a simple court structure comprising one national court each for civil and criminal business, and one layer of local courts throughout the country for civil business and two layers for crime, the Faculty points out that "By contrast as regards civil business the recommendations of the review contemplate at least two and possibly three additional national courts.”

The Faculty sees the underlying theme of the Gill proposals as reducing the workload of the Court of Session and High Court as an end in itself. "It is critical to observe", it comments, "that this objective is achieved by displacement of work and not by improved efficiency.

“To achieve this it will be necessary to introduce a compensating plethora of new courts and judicial appointments to alleviate the impact of passing displaced cases down to already overworked sheriff courts.

“The question arises as to whether, as Scotland enters a prolonged period of public expenditure constraints, such change is justifiable. The report advances no persuasive justification."

Important right

Advocates have particular concerns over the proposal to remove from the Court of Session cases worth less than £150,000, a figure it describes as “inexplicably high” and three times the figure that applies to equivalent courts in England and 10 times that in Northern Ireland.

Only advocates have automatic rights of audience in the Court of Session, and the sheriff has to approve their instruction in the sheriff court if the cost is to be recovered from the losing side. The Faculty points out that a change along the lines proposed would displace more than 2,000 cases each year out of a total of 3,400 to the sheriff court, but the report is silent on whether there would be sanction to use counsel in the sheriff court.

 

The Faculty argues that "there should be far greater research into relative costs of litigation in the sheriff court and the Court of Session before a properly informed decision of appropriate level of the exclusive jurisdiction of the sheriff court can be made".

It points out that the majority of personal injury cases in the Court of Session are conducted on a “no win no fee” basis under which advocates and solicitors are paid by the recovery of judicial expenses from the losing side. Without an assurance of recovery of costs, it adds, "the effect of increasing the limit (to £150,000) would be to exclude access to an independent referral bar in those personal injury cases which proceed in the sheriff court. An important right that most pursuers in such actions currently have would thereby be removed”.

Practice reforms

The advocates accept that it is "beyond argument" that not every part of the current system works efficiently, but claim that the radical restructuring proposed is not necessarily the answer. "The answer lies in reform of current practice and procedure which the Faculty of Advocates fully supports.”

It supports the proposals for specialist sheriffs, judicial specialisation in housing and family cases, the promotion of public legal education as part of a strategy to improve access to justice, a special multi-party procedure where a number of cases involve common or similar issues of fact or law, and the elimination of the use of part-time judges.

In all, the Faculty accepts 144 of Lord Gill's 206 recommendations.

Click here to access the full response.

 

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