Thursday, November 19, 2009

Scottish court users advised to 'take along a note taker' as omissions in civil court transcripts jeopardise consumers access to justice

SCS logoIn some cases, notes of proceedings in Scottish courts 'are worthless'. Litigants who use Scotland's courts for civil proceedings have today been advised to take along witnesses or their own note takers, after revelations emerged in several long running damages actions of a pattern of serious omissions in the official notes of court proceedings which have in some instances, heavily compromised litigants legal positions and ruined clients trust in their own legal representation who were found to be less than competent during court proceedings.

Despite the fact Scotland's courts have had recording equipment fitted several years ago, notes from cases heard in Scottish Courts including the Court of Session, which have involved challenges against professions such as medical negligence claims against Health trusts, negligence claims against the legal & financial professions and even challenges against public bodies including Government department, have revealed that rarely do the full judgements or even court interlocutors contain a fully accurate account of the events which actually took place in court in front of litigants, leaving many court users bemused or facing severe difficulties in their cases or legal positions.

Unsurprisingly, these omissions in court documents & judgements seem to have a habit of occurring particularly where issues involve failures of litigants legal counsel, or in one example quoted to me, where a judge had heavily criticised a litigant’s legal team for not entering medical evidence into pleadings, which the litigant had only found to have been not produced after he had himself written to the Scottish Courts Service enquiring what papers his legal counsel had actually filed.

A Courts insider today said : “While every single word could not be written down that is said in a court case, there is a general reluctance by people working for the Scottish Courts service to note down such embarrassing details as litigants finding out only during a hearing after harsh criticism from the judge that their legal teams had not presented key evidence to their case.”

He continued : “I recall many attempts by a litigant to gain transcripts of a hearing where the judge apparently told the litigant’s QC he was ill prepared and was wasting his clients and the courts time after it came out no papers had been entered into productions. The client protested vigorously in letters to the SCS that his counsel had informed him otherwise, even copying letters from his solicitor that all productions had been sent in. This was however not the case and clearly his legal team had not followed through.”

“Had the hearing been recorded accurately I have no doubt the litigant would be in a stronger position to do something about the omissions of his legal team”

A solicitor working with a consumer organisation admitted there were serious shortcomings in courtroom transcripts in Scotland's courts. He said : "I suspect court users, and even the general public would get quite an eye opener if all court proceedings were accurately transcribed or even audio recorded. It may very well be that many of those who come to court may wonder what their legal representatives have been doing, after going over the recordings a few times after the event.”

He continued : “Scottish Courts do have the facilities to audio record cases, which I would definitely advise court users to request, but I would also advise anyone who may feel they need an independent note of what happened during their court hearing, to take along a friend or someone who can write down what took place in the court, and also if necessary, be a witness at a later date.”

In an example of a case where ‘dodgy note taking’ seems to have omitted key criticisms from the bench of a pursuer’s legal team who were representing a victim of medical negligence, a full list of medical examinations made by independent experts, and key expert witness testimony on the pursuer's condition and treatment in hospital had not been entered into evidence – this despite the pursuer having a letter from his solicitor giving a full numbered list of productions to the court, which in reality did not exist.

It appeared in this particular case, the pursuer’s legal team never expected the case to go to proof, and the whole episode only came to light when the sitting judge asked the pursuer’s QC where were the medical reports of his client, leaving the pursuer’s legal team speechless and asking for an adjournment to a later date. Sadly none of this was recorded in the report of the hearing that day, and now the pursuer finds himself without legal representation, after questioning his solicitor why he was told his productions had been entered, when clearly they were not.

Lord GillLord Gill recommends digital recordings of all civil court evidence. The extent of problems with court transcripts and recordings, was recently referred to in Chapter 6 of Lord Gill’s Civil Courts Review, where the Lord Justice Clerk stated : “Currently where evidence is recorded in civil cases this is done manually by a shorthand writer. In our view it would be more efficient to record digitally all evidence in civil cases, as happens in criminal cases. The cost of this should be borne by the SCS. The availability of digital recording facilities in all courtrooms would contribute to more flexible usage of accommodation. We understand, however, that to equip a court fully for digital recording could cost up to £15,000. That may be prohibitive in smaller courts. Mobile facilities could be made available in those courts when required. If parties required a transcript of the evidence a charge would be made for this service. In many instances a recording of the evidence would be all that would be required.”

Clearly problems do exist with transcripts of courtroom activity, which as Lord Gill concludes himself, would easily be curtailed by the digital recording of all evidence in civil cases.

You can download Lord Gill’s Civil Courts Review at the following links : Civil Courts Review

Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, use of information technology in courts, advice etc, 2.99Mb)

Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)

Synopsis (215Kb)

While Lord Gill’s recommendations are being considered .. and lets hope the powers that be don't take the usual eternity to consider them … if you feel you need a witness to your civil court hearing, which I would certainly recommend you do, take along someone with a pencil & notebook – it may very well save you later on if something goes wrong.

Courtroom notes and your lawyers version of events after the hearing may sound all well & good, but time & again, the most important references of events which end up determining whether your legal team have acted in your interests or otherwise, are simply not there fin the shorthand writer’s notes for you to refer to later on when difficulties arise. An extra body with a notepad may well be your saviour when needed later on.


Anonymous said...

Sensible advice at any time but it does make me wonder why they always leave out the bad bits about lawyers in their notes ..

Also Lord Gill probably thought the same hence his recommendations ?

Anonymous said...


Anonymous said...

“Had the hearing been recorded accurately I have no doubt the litigant would be in a stronger position to do something about the omissions of his legal team”

Yes it just happened to miss out the criticisms of the lawyers then.

Now that IS a surprise !

Anonymous said...

Given what you have already written about lawyers I would never trust a court shorthand writer anyway.Your latest just backs that up.

Good advice I hope people have the sense to follow.

Anonymous said...

Good idea but the Scottish Courts are so basic in their audio most people who attend cant hear a bloody thing whats going on (probably designed that way)

The note taker will have to be pretty much next to the judge to actually hear everything so how would this really work if the set up is that no one past you and the lawyers can hear whats going on ?

Anonymous said...

I think if I found out my own lawyer had done me over like that I'd ring his bloody neck in front of the judge

Anonymous said...

Thanks.Totally missed the point in Lord Gill's review about recording civil court stuff!
You are a gem Peter!

Anonymous said...

Some years ago I requested that all the hearings in my own case - which is still ongoing - be recorded. The request was refused.

Apparently whatever the judge remembers is what happened. Needless to say I took a witness along to this and all subsequent hearings.

I doubt there would be any significant cost attached, virtually all courts have a computer already and it is a simple matter to set up a digital recording facility - if the will is there.