Civil justice system needs urgent review, says SCC

Consumer Council report says public find system too slow, expensive and complex

News, 3 November 2005

A new report commissioned by the Scottish Consumer Council is calling for an urgent review of the civil justice system because it is too expensive, too slow and too complex.

The report, produced by a working group chaired by Lord Coulsfield, the retired Court of Session judge, says that thousands of Scots are put off pursuing claims in the civil court because of spiralling legal expenses. It recommends that the Executive set up a civil justice review to make a fresh examination of the whole system based on a thorough investigation of the way it functions at present.

Research by the advisory group showed that between a third and two-thirds of people with problems which could be resolved in court decided against taking action. Half of this group had an annual income of less than £10,000.

The SCC wants to see a review of both the procedures and the financial limits that apply in the lower courts. It points out that disproportionate costs can be incurred in cases under summary or ordinary cause procedure, while recognising that the small claim procedure - currently for amounts under £750 - does not achieve equality of arms as members of the public who appear may well find the other party represented by a solicitor or experienced employee.

Simplifying smaller value cases

It suggests that the solution might lie in a new simplified procedure "of a generally inquisitorial character" for cases of a value up to, say £5,000. It also recommends exploring different ways of paying for legal representation other than the "time and line" basis normally charged, such as fixed fee or proportional cost remuneration, and a further look at whether recovery of expenses by the succcessful party should be the normal rule.

Another consideration should be specialist sheriffs who would preside only over specific cases such as divorce and custody disputes, to speed up the system. The SCC further suggests that the courts be given more power to enforce judgments.

The report proposes that the recommended review should include:

the problem of disproportionate costs;
the relationship between civil and criminal business and its impact on court administration;
whether there is a need for specialisation among courts or judges;
whether increased case management by the courts could improve the conduct of court business;
how lawyers' remuneration is assessed and its impact on recoverable costs;
whether there should be some public role in ensuring that judgments are observed.

The Law Society of Scotland said that it agreed with many of the points in the report, but that fixed fees between lawyers and their clients would be anti-competitive.

The Scottish Executive said it was already working towards reform of the civil justice system, with new legislation covering family law, human rights, legal aid and the legal professions, and bankrupty and diligence.