No half measures

The Scottish Civil Courts Review under the leadership of Lord Gill, Scotland's Lord Justice Clerk, promises the biggest shake up of Scottish civil justice for more than a century.

Proposals for reform are intended to be 'pragmatic' and 'practicable' rather than 'revolutionary' '“ Lord Gill has drawn on the recent experience of reform in England and Wales as well as some of the Scottish success stories of the last few years and sought to roll them out across the country. Commercial clients litigating in Scotland, for instance, have benefited for many years from the excellent service provided by the Commercial Court in the Court of Session. With specialisation, tailor-made procedures and flexibility, litigators in other Scottish courts have eyed the court enviously. Now Gill seeks to do the same elsewhere.

Court hierarchy

Gill is strongly critical of the existing arrangements, whereby any claims above £5,000 can be raised in either the sheriff court or the Court of Session (these, respectively, are Scotland's equivalents of the county court and the High Court). His aim is to create a hierarchical structure of courts to deliver justice expeditiously, economically and efficiently. There would be a major transfer of jurisdiction from the Court of Session to the sheriff courts. An increasingly specialised shrieval bench would be assisted by the creation of new judicial officers '“ the district judges.

Minor civil claims (below £5,000) and less serious criminal matters will be dealt with at district judge level with other judges handling civil litigation appropriate to their respective seniority and expertise. Simpler rules will be created to allow parties to conduct litigation themselves and district judges encouraged to adopt a more interventionist approach. An opportunity has perhaps been missed to recognise the lack of proportionality of claims for less than £10,000 in comparison to the legal costs.

The creation of the district judges is also aimed at ending the current reliance on part-time sheriffs and temporary judges drawn from current practitioners because, as Gill points out, it is hard to see how such roles would fit with other recommendations such as case management.

Court of Session and the Sheriff Appeal Court

By raising the privative jurisdiction of the sheriff court from the existing £5,000 to £150,000, Lord Gill will, by his own estimate, remove over 60 per cent of cases from the first instance business of the Court of Session while leaving the commercial business of that court relatively untouched. Gill estimates that only 25 per cent of commercial claims would be affected. That is still a significant proportion, particularly in a small jurisdiction with a very successful court. Commercial clients may feel that a lower financial limit for their claims would achieve the stated aim; an increase to a £100,000 limit might have been a more appropriate figure.

The Court of Session is to be returned to its original role dealing with the most significant Scottish legal cases, and its appellate functions, exercised by the Inner House, will also be guarded more closely. Rights of appeal would be curtailed. A new national Sheriff Appeal Court would be created to deal with appeals from sheriffs and the district judges. The 19th century approach to appeals would be swept away with the new three-judge bench of the Sheriff Appeal Court binding all sheriffs and district judges throughout Scotland. Its opinions would have greater consistency and tend to carry greater weight even with those who are not formally bound by those decisions.

The imposition of a requirement to seek leave to appeal would further restrict the number of cases finding their way through to the Inner House. Even within the Court of Session, a new sift mechanism will be introduced to reduce the volume of appeal work which currently swamps the Inner House.

Transfer of cases

Pressure of business and the consequent delay has been the subject of many complaints. Rules preventing the easy transfer of cases from one court to another will be relaxed and courts will be encouraged to take steps to ensure that cases are handled by the appropriate court irrespective of geographical location. With lists of outstanding decisions published online, judges would be required publicly to explain any delays.

Improved efficiency for personal injury

New streamlined procedures in personal injury cases are already in place in the Court of Session and similar rules are due to come into play in the sheriff court in November this year. Those rules will be largely untouched by Gill's proposals, but the bulk of such claims would be handled at sheriff court level with only the most serious continuing to be heard by the Court of Session. To maintain the efficiencies for practitioners, claimants and insurers, it is suggested that a new specialist personal injury sheriff court be established in Edinburgh. It would be presided over by specialist sheriffs experienced in working in the field and would go a long way to preserving consistency and quality of decision making in this area. Perhaps surprisingly, Lord Gill has chosen to recommend the retention of civil jury trials in personal injury cases and extend their availability to the new personal injury sheriff court.

Specialisation and case management

Specialisation is a recurring theme in the report and reflects the way in which solicitors have sought to focus services for the benefit of clients. Existing arrangements in the Court of Session have worked well, with commercial and intellectual property cases being heard by specialist judges. The sheriff court will see significant changes whereby sheriffs with appropriate skills will be identified or newly appointed to hear certain categories of cases. Family, commercial and insolvency cases are all recognised as being likely to benefit from this approach.

Increasing specialisation will be accompanied by far greater levels of case management by judges. Personal injury claims will largely continue to be handled using case-flow timetables which prevent cases having to call in court at all during their relatively short life. Practitioners in other areas will experience active judicial case management for the first time with the courts having power to control the conduct and pace of litigation. A docket system would result in cases being allocated to individual judges who would maintain involvement throughout. The new provisions would apply to all courts with the precise form of management kept flexible enough to cope with the wide range of case types.

Wider use of technology

Although a small jurisdiction, Scotland's geography means that courts are often located in relatively isolated communities. Case management will require the involvement of the solicitor principally instructed in the case and, to ease travel difficulties as well as to cut costs, Gill proposes that telephone and video conferencing as well as email communication become the norm. There are precedents with similar conferences involving sheriffs already being held by phone in commercial cases in a limited number of sheriff courts. The need for wider use of such technology is an obvious one '“ something certainly we have been supportive of for some time.

The complex system of written pleadings which encourages lengthy legal debate will be abolished. There will be greater powers to order the disclosure of documents and the lodging of witness statements and tighter controls on the use of expert witnesses. Instruction and choice of expert will remain in the hands of parties. Gill also proposes amendments to the current system of judicial review which plays an increasingly important role in a devolved Scotland.

Surprises: protocols and mediation

Pre-actions protocols and mediation are perhaps two of the bigger surprises in the Gill package. He is strongly supportive of both but, in almost all cases, has stopped short of imposing them on parties. He advocates strengthening existing limited voluntary protocols in personal injury claims and extending their application to all such cases, as well as making compliance obligatory. However, he rejects their use in family and commercial disputes regarding them as unnecessary and overburdening. Similarly, he avoids what many had anticipated '“ a requirement to mediate. He recognises that mediation has a role to play in resolving disputes but that it should supplement an effective court system rather than being an alternative to it. The report seems to strike the right balance between informing parties of the alternatives available to them and preserving their right to obtain a judicial decision.

Class actions

The lack of a formal procedure to cope with class actions has caused problems in the past and prevents multiple claims being litigated efficiently in Scotland. A new multi-party procedure would seek to address the issue. Restricted to the Court of Session, both opt-in and opt-out forms of litigation would be available, with the decision being left to the court to decide which form should be adopted. Questions remain, however, over funding methods.

Disappointment: costs

Perhaps the biggest disappointment in the report is the extent to which Lord Gill has felt able to address questions of funding and recovery of costs and judicial expenses. He acknowledges that there are deficiencies in the present arrangements with limited recovery in the event of success. He makes certain specific recommendations as to how this difficulty might be overcome, but advises that his resources prevented more detailed investigation. He strongly recommends that further work should be carried out and urges the Scottish government to set up a working group to consider questions of expenses, speculative fee arrangements and legal expenses insurance. If his other reforms are to have a real prospect of transforming the look and feel of litigation in Scotland, this issue must be given the urgent attention it clearly deserves.

Creation of a Civil Justice Council

Gill stresses that the reforms proposed in his report must be seen as a package. He is keen to underline the need to look at the 'broad picture of civil justice' rather than carry out piecemeal tinkering to deal with individual problems in the system, and is critical of the ad hoc approach adopted over the past 100 years. He recommends the creation of a Civil Justice Council for Scotland to mirror the work of the CJC in England but with additional responsibility for drafting rules of court. Supported by a secretariat and the existing Scottish Court Service, it would continue the work that Gill has started by keeping the Scottish system under continuous review and monitoring the implementation and operation of the recommendations made in the report.

Move to modernisation

Lord Gill's report represents the first attempt in modern times to take a holistic approach to the health of the Scottish civil justice system. It recommends a course of treatment to modernise civil justice and is likely to receive a warm welcome from solicitors. The report marks a leap forward in terms of access to justice; so more importantly perhaps the recommendations should also be welcomed by clients, in Scotland and beyond, who ultimately need recourse to appropriate courts to resolve their disputes.

There will undoubtedly be public debates and further discussion regarding some of the finer details '“ full implementation will require both political will and additional funding. It is hoped that support for the proposals will be forthcoming notwithstanding the current economic climate. One thing is clear '“ Scotland cannot afford to ignore the full measure of change that is long overdue.