27 year wait for class actions in Scotland ‘to be considered’ by Justice Secretary after publication of Lord Gill's civil justice review

The Scottish Government ‘may’ support the introduction of class action litigation in Scotland if Lord Gill's review recommends it. CLASS ACTIONS may finally be introduced to Scotland, on condition the issue is recommended for action by the Lord Justice Clerk, Lord Gill, in his long awaited Civil Courts Review, due to be published in the next few weeks.

Justice Secretary MacAskill 'will consider' Class Action proposals as part of Lord Gill's recommendations. In a letter to the Scottish Parliament's Petitions Committee, who were considering a public petition to introduce Class Actions to Scotland, a Justice Department official replying on behalf of the Justice Secretary Kenny MacAskill said : "The Review is looking at significant possible reforms to the civil courts system in Scotland. Several of these wider reforms have a direct bearing on whether the introduction of class action procedure is desirable and how it would work. Lord Gill’s recommendations on multi-party actions must be considered within this wider framework and the funding implications of the Review’s proposals. These issues include judicial resources, judicial case management, improving the operation of court procedures, how litigation should be funded, public funding, and use of alternative dispute resolution procedures."

"In the interim, the Cabinet Secretary for Justice has confirmed that he is prepared to consider class action procedure as part of Lord Gill’s wider recommendations. The Cabinet Secretary for Justice and Minister for Justice have also discussed the some of the options for class action procedure with the Dean of the Faculty of Advocates who has called for introduction of the procedure to enable claims to be raised against financial institutions amongst others."

A legal insider today who has been studying Scotland's exclusion of Class Action litigation in Scotland said today : "Given the Scottish Executive’s lack of progress on legal reforms, and the protectionist nature of the Justice Secretary towards reforms which he or the legal profession perceives as threatening business, or even threatening the profession itself, I am not all that confident that class actions will be introduced in Scotland to the degree this type of litigation exists in other countries. There will, I fear be unwarranted restrictions on who can mount class actions and who will be able to represent groups of litigants in court."

He continued : "While it is a fact the Dean of Faculty himself earlier this year called for class actions to be introduced in Scotland, Mr Keen was more interested in taking on the banks rather than anyone else at the time. Since the dean's words on this issue in January, a lot has happened to the banking sector, and I wonder whether he is now so keen himself six months on to pursue his rather 'limited' call for the introduction of class action legislation just to take on a few banks when in fact he should have called for the unfettered implementation of class action procedure at the time."

An consumer affairs insider this afternoon said he also feared that while class actions may be allowed in Scotland, there might be restrictions on how those types of actions could be raised, along with restrictions on who could represent class action litigants, and even perhaps restrictions on who exactly class actions could be raised against.

He said : “Our organisation is, as you know, fully supportive of Lord Gill’s civil courts review and we hope he will recommend that class action procedures be introduced. However, we would not like to see restrictions on who could represent groups of litigants involved in class actions. We feel that such reforms must be looked at and acted upon while also freeing up Scotland’s legal services market to open competition.”

He continued : “While it may be the preference of some within the legal profession to have class action cases handled by a select few advocates & legal firms, that is not what we would think of as a genuine reform. Great care must be taken to avoid introducing reforms such as class actions, or McKenzie Friends, and then bowing to the wishes of Scotland’s current closed shop legal services business model, by introducing restrictions on how those reforms would be implemented and utilised by court users and the public at large. We would not want to see a situation, where for instance some public bodies and institutions in Scotland gained an immunity from class actions being raised against them.”

The hopes of radical reform to Scotland's "Victorian justice system", including the implementation of class action procedures, rest with Lord Gill's civil court review. The two year civil courts review, conducted by the Lord Justice Clerk, Lord Gill, aims to reform Scotland's antiquated civil justice system, described by Lord Gill himself as being stuck in Victorian times. Lord Gill in his speech to the Law Society’s annual conference said : "The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago."

"It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost."

Lord Gill, branded Scotland’s civil justice system a failure, concluding : “Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice. Unless there is major reform and soon, individual litigants will be prevented from securing their rights, commercial litigants will continue to look elsewhere for a forum for their claims, public confidence in the judicial system will be further eroded, Scotland’s economic development will be hindered, and Scots law will atrophy as an independent legal system. The conclusions of our Review are as stark as that."

I am, of course, also supportive of Lord Gill’s civil courts review, and such important issues as the introduction of class action procedures, and also important access to justice issues such as the introduction of McKenzie Friends to Scotland’s courts. However as with all things legal in Scotland, there will no doubt be stubborn resistance from the legal establishment, who will lobby for the usual conditions and strings to be attached by the Scottish Government to such reforms, as my colleague in the consumer affairs arena indicates.

The Law Society of Scotland would certainly not want to fall victim to class actions from victims of crooked lawyers. I foresee that, for instance, bodies such as the Law Society of Scotland, and those connected with regulating the legal services market may seek to impede the implementation of class action procedures, upon condition they gain some kind of immunity, which would of course, be an unrealistic proposal for any impartial & honest person to accept … The trouble with that is though .. we don’t have too many impartial & honest politicians at the moment who might stand up to the lobbying efforts of public bodies and agencies seeking such immunities from the law.

Just imagine that local health trusts, or specific agencies of the Scottish Government, local government, and even industries might seek to lobby against the implementation of class actions in Scotland. How would the Scots public feel about that ?

The fact is that calls for the implementation of Class Action procedures in Scots Law have been made since 1982, with a recommendation along these lines being made by the Scottish Law Commission some thirteen years ago in 1996 who also presented draft court rules at the time.. However, in 2000, the Court of Session Rules Council decided that existing procedures were adequate enough, and the Scottish Law Commission’s recommendations were thus not implemented.

Now, here we are in 2009, over twenty seven years since class actions were called for in Scotland, yet class actions are still not allowed in our courts, demonstrating to me that even if Lord Gill does go the full hog and recommend their introduction, legislation will be needed to ensure class action litigants obtain a fair hearing, and are allowed access to legal representation of their own choice, rather than such legal representation being forced on them by the legal profession itself.

You can read more about Petition 1234, to introduce Class Actions to Scotland, here : Scottish class action procedure raised by Peter Brown on 12 January 2009 with written submissions on the petition appearing HERE

Petition 1234 calls on the Scottish Parliament to urge the Scottish Government to instigate a class action procedure or similar in Scots Law to correspond with the legal systems of many other countries including England and the United States. The background to the Petition can be read here : Background to Class Action Petition

So, this leaves us in the hands of Lord Gill, the Lord Justice Clerk, and the civil courts review once more. I hope the review will live up to the expectations of many, but I suspect a degree of political meddling will leave Scotland’s public coming up short again in terms of our access to justice compared to the rest of the UK …