Faculty in call to keep Court of Session actions
31 Mar 08
Submission to Gill review warns of danger of losing cases to England
Some of the proposals in the consultation from the current review of the civil court system could reduce rather than enhance access to justice for the people of Scotland, the Faculty of Advocates maintains.
In its response to the paper from the review headed by Lord Gill, the Lord Justice Clerk, the Faculty strongly opposes any suggestion that the role of the Court of Session, Scotland’s supreme civil court, should be restricted to the hearing of appeals.
The Faculty comments that it "cannot see how depriving litigants of the right to bring proceedings in the Court of Session can be anything other than prejudicial to the right of access to justice". While agreeing that value for money and cost-effectiveness are important principles, it adds: "they are not paramount. The overriding reason for having an effective and efficient civil justice system is to ensure that all have access to good quality justice within a reasonable time".
From a commercial prospective, the submission claims that it would be damaging to the reputation of the justice system in Scotland if litigants were deprived of the right to commence civil proceedings in the Court of Session.
"Parties with a choice of jurisdiction, as is commonly the case in commercial litigation, are likely to choose the High Court in England in preference to having to commence litigation in a sheriff court."
Support for conditional fees
The advocates put forward a number of proposals designed to promote access to justice in civil cases, where people now find it increasingly difficulty to obtain legal aid.
These include the introduction of conditional fee arrangements, allowing a significantly higher recovery of costs by successful litigants, and increasing public awareness of the availability of legal expenses insurance.
The Faculty says that a number of cases which would normally be pursued in Scotland are already being lost to England, where the percentage of costs recovered by successful litigants is significantly higher.
The Faculty also urges that a conditional fee arrangement (CFA) should be allowed in Scotland to provide a procedure that is already available in England & Wales.
"It is the firm view of the Faculty of Advocates that there are Scottish citizens who are denied access to justice that they would be granted if they lived south of the border. Such a position is not acceptable."
CFAs, available in England since 1995, allow clients to enter into agreements with their lawyers that the lawyer will act on a no win, no fee basis, but an additional fee will be payable if the case is won. Critically, the fee is paid by the losing side, which is not currently the case with "speculative" actions as allowed in Scotland.
In the Faculty’s view, allowing CFAs in Scotland would increase access to justice without any increase in cost to the public purse.
As far as legal expenses insurance is concerned, the Faculty would like the public be made much more aware that "before the event" insurance is widely and cheaply available, sometimes as an addition to house contents policy or motor insurance.