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Build justice system round users, says advisory group

19 January 2011

Civil justice reforms in Scotland should focus on creating a system designed around the people who use it, according to an expert group chaired by retired judge Lord Coulsfield.

The group was commissioned by Consumer Focus Scotland to report on future options for Scotland's civil justice system in the light of the review by the Lord Justice Clerk, Lord Gill, published in September 2009. The Scottish Government recently announced it planned to implement the Gill proposals, which involve a radical shakeup of the civil court structure including a new lower tier of judges in the sheriff court.

Lord Coulsfield's group was originally set up in 2004 and its report “The Civil Justice System in Scotland – a case for review?” provided the basis for the terms of reference given to Lord Gill by the then Scottish Executive.

In its new report, "Ensuring effective access to appropriate and affordable dispute resolution", launched in Edinburgh yesterday evening, the group calls for a radical rethink on how the civil justice system can be reformed to make it more fit for purpose and user-friendly.

System-wide

In order to ensure that resources are invested in the most efficient and effective way, the group is urging the Scottish Government to take a system-wide approach to future reforms and to look at how the different elements of civil justice – including the courts, tribunals, and alternative dispute resolution, as well as information and support for those with disputes – can best be structured to ensure those with disputes can access the most appropriate solution for their particular problem and circumstances.

The group's recommendations include:

  • the development of a "triage" approach to civil justice problems, aiming to ensure that users are directed to the most appropriate pathway for the resolution of their problem;
  • the creation of a web-based system bringing together information on rights, responsibilities, sources of help, and advice and options for dispute resolution;
  • funding to pilot more proactive public legal education initiatives to build legal capability amongst particular groups, especially the more vulnerable;
  • the introduction of new court rules to encourage, but not compel, parties to seek to resolve their dispute by mediation or another form of alternative dispute resolution, prior to going to court;
  • a mediation scheme which could be accessed before a court action is raised, as well as being available to the court;
  • the need for a clear separation between civil and criminal business in the third tier of civil jurisdiction proposed by the Gill review;
  • the third tier should operate within a simplified process, with plain English, user-friendly rules, and clear, simple forms. Efforts should also be made to ensure the culture of the third tier is not intimidating for litigants;
  • the establishment of a specialist jurisdiction to deal with housing cases (a point expressly rejected by Gill);
  • a Scottish Government review of the way in which family cases are dealt with, including the rules and procedures which should apply, with consideration being given to a more interventionist approach;
  • national roll out of in-court advice services, although these should not necessarily be based within individual courts.

The report also calls on the Scottish Government to ensure that the full range of relevant interests should be given the opportunity to provide sufficient input to future civil justice reform. It will now be submitted to the Scottish Government to support its implementation of the Gill review proposals.

Accessible

Lord Coulsfield said the Group’s aim was to make the civil legal process more effective and efficient as well as easier for its users. “I hope that we have made suggestions which will contribute to the creation of a system which will encourage the resolution of disputes by agreement wherever possible, but also provide for an unintimidating and accessible – and efficient – court procedure where agreement cannot be reached", he commented.

“Our intention was, through taking a broader look at the experience of people who need the help of the civil justice system, to make recommendations that will spare those who do not need to go to court from having to do so, and reduce the stress for those who do.”

Minister for Community Safety, Fergus Ewing MSP, said the Group was putting forward an important set of options. “Scotland’s civil justice system must be open to all who need it and has to offer support that is neither too slow nor too intimidating for users.

“I would like to thank the Civil Justice Advisory Group under Lord Coulsfield for their work. They have given us a series of very helpful recommendations for future reform, which we shall now consider as part of our approach to reforming the wider civil justice system.”

The group's membership included representatives from the Law Society of Scotland, Faculty of Advocates, Scottish Court Service, Consumer Focus Scotland, Citizens’ Advice Scotland, Scottish Legal Aid Board, Scottish Association of Law Centres, Scottish Mediation Network, and the Scottish Committee of the Administrative Justice and Tribunals Council, as well as Professor Alan Paterson from the University of Strathclyde.

Click here to access the report.

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