Long awaited Consumer Focus research points to lack of access to justice in Scotland's civil courts. SIX YEARS after the Scottish Consumer Council began investigating the mess that is Scotland's civil justice system, the SCC’s latest incarnation, Consumer Focus Scotland, has reported to a rather unsurprised audience that Scotland's civil courts are indeed in the mess we all know them to be, and that access to justice in the civil courts is limited at best, descending to 'non-existent' for most Scots who try to pursue civil law issues on their own.
The research, funded by Consumer Focus Scotland, managed by the Scottish Legal Aid Board, and implemented by market research group IPSOS-MORI, which was initially hoped would interview hundreds of people, eventually only took in the views of 35 court users, because the Scottish Court Service, as I reported yesterday, blocked the release of crucial documents on cases to the research team.
You can download & read a copy of the Consumer Focus Scotland research in acrobat .pdf format : HERE
The problem I have with the report is that there are too few numbers involved in the actual survey, and therefore too few experiences studied & reported to back up what should be wide ranging reform proposals we are all expecting to hear from the work of Lord Gill’s civil court review. The Consumer Focus report conclusion does highlight these shortcomings of a lack of interview subjects for the research, but as many pointed out yesterday in my report on the Scottish Court Service blocking the success of the Consumer Focus research, much more could have been done to attract people into the project.
The Report’s conclusion makes reference to a lack of interview subjects, twice : “This report contains the findings of a small scale, exploratory piece of research which has aimed to build on the existing weak evidence base of the experiences of civil court users in Scotland. Because of the difficulties involved in identifying and accessing court users, our eventual sample of litigants (a combination of those who had contacted an in-court advice service and litigants identified through Scottish Legal Aid Board applications data) cannot be said to be typical of the population of unrepresented litigants currently pursuing cases through the courts – in terms of factors relating to demographics, case and litigant type as well as their experiences, attitudes and behaviour.”
and here : “Lastly, because of the narrow range of sample available to us in order to conduct the research, those interviewed had gone through either a small claims or summary cause action. None had experienced ordinary cause procedure, and considering that these cases are likely to be more complicated, with no standard forms available to help unrepresented litigants, there is good reason for ensuring this group is included in future studies.”
Missing from the report is the fact that for now, consumers access to justice is controlled by the legal services market monopoly enforced by Law Society of Scotland and individual solicitors. The glaring omission in the Consumer Focus research, is the obvious fact that problems with the public’s access to justice in the civil court system can really be explained in one obvious sentence - a lack of access to trustworthy, transparent & accountable legal services & legal representation at a reasonable cost. Access to justice in Scotland, will always be restricted until the element of control the legal profession itself exhibits over the justice system is taken away from them.
A person’s right of access to justice should not be decided by a solicitor on the back of the legal profession’s business for profit model, brutally enforced as a monopoly by the Law Society of Scotland for far too long … a person’s access to justice should be decided by the court after a fair hearing on the individual’s case, with that individual having unrestricted access to the trustworthy, transparent & accountable legal services & legal representation at a reasonable cost which everyone deserves, regardless of wealth or status.
Reforming civil justice and the civil courts is one thing, but any such reforms are meaningless unless the legal services sector itself is reformed, and fully opened up to competition and effective independent regulation, so that people don't need to face the court alone and defend themselves against not only an adversary, but also the less than friendly court environment and also the usual opposing legal counsel who will use every trick in the book to prevent party litigants from gaining a fair hearing in civil court cases.
Now of course, the test comes on how exactly these findings, and indeed the experiences of tens of thousands of other Scots who have used or attempted to use the civil justice system in Scotland, will impact on the forthcoming Civil Courts Review, chaired by Lord Gill, the Lord Justice Clerk. Reform must take place, sooner rather than later - and this time, for the good of the public, not the legal profession.
Here is the Press Release from Consumer Focus Scotland which accompanies the release of the research :
What’s going to happen to me?
Snapshot of court users points to need for better information and guidance
A study involving people taking and defending civil cases in Scotland’s sheriff courts suggests people too often don’t know what’s going on around them. The snapshot study commissioned by Consumer Focus Scotland and the Scottish Legal Aid Board shows court users can find themselves believing what’s to come is going to be far worse than it turns out to be.
Head of Policy at Consumer Focus Scotland, Sarah O’Neill – herself a solicitor and former in-court adviser – says the research points to an urgent need for better information for the public, and wider access to support services in all courts:
“People who bring their civil cases to court, or defend cases brought against them, who are often representing themselves, told us that it can be worrying and bewildering. While solicitors and some businesses that use the courts a lot may find it all straightforward, the lack of information, and sometimes advice and help services, are disadvantaging people taking or defending a civil case in court, often for the first time.”
Due to advice from the Scottish Court Service that for data protection reasons they were unable to allow us access to court records, the research was confined to in-depth interviews with 35 people contacted through the Scottish Legal Aid Board and In Court Advice Services.
“This can only be a snapshot as we did not manage to reach the numbers and variety of court users needed to create a bigger picture,” says Sarah O’Neill. “However, it is very rare indeed for anyone to ask court users in Scotland for their opinions on the system – there has been little previous research into these issues. A consistent message we got back was that few knew what to expect and many were deeply concerned about understanding the language and procedures.”
In Court Advice Services, now funded by the Scottish Legal Aid Board, were generally praised by users who suggested they needed to be better publicised. Some litigants felt the services were over-stretched and lacked connections with the court’s own staff.
Sarah O’Neill says courts themselves are not seen as user-friendly:
“One complaint was that little thought seems to be given to what is convenient for court users. As one person who pursued a small claims action and represented himself put it: ‘It’s always ten o’clock and it’s always on a Thursday, but you can sit there for two hours.’
“Of course, what no research with court users will ever tell us is how many people are put off pursuing their case as a result of their preconceptions about what’s involved. This is another reason why investment in giving people a deeper understanding of the Scottish legal system is essential to opening up civil justice.”
The findings of the study are being submitted to the Civil Courts review being led by Lord Gill, and to the Scottish Government.
Notes for Editors
The interviews undertaken by Ipsos MORI with litigants covered:
* Accessing civil justice
* Appearing in court
* Fairness of process
* Information provision
* Court staff
* In-court advice services
* Cost of litigation
Those interviewed had been involved in a variety of case types, including small claims actions, debt, housing and eviction cases and mortgage repossession proceedings. The court users interviewed fell into categories:
Civil Legal Aid Applicant : 19
Received advice from in-court advice service : 16
Defender : 26 Pursuer : 9
Case heard in court : 17 Case not heard in court : 17 Not sure whether case heard in court : 1
Representation in court
Of 17 cases heard in court Represented by solicitor in court at some stage in proceedings : 6
Represented self in court at some stage in proceedings : 9 Case heard in court but did not attend : 2
Quotes from Interviews:
[About the prospect of going to court] They seem to use a lot of legal jargon…I’m pretty much a straight talking person, I’m not one for the words that they use….I could possibly have used the wrong word or put it in a different way and it wouldn’t have helped me.
Pursuer, small claims action, received advice from in-court advice service, case not heard in court
I wouldn’t have a clue what to do anyway, they’re professionals so they know the ins and outs….I’d rather they did it and did it correct than I did it and made an ass of it.
Defender, mortgage arrears, represented by solicitor in court
“I was actually shaking to be quite honest with you….What was going to happen to me, was I going to go to jail? I was sitting outside the courtroom and I was biting my nails and I was like, ‘what’s going to happen to me?’. I was in a terrible state and the boy next to me said, ‘nothing’s going to happen to you’, and I was actually crying. I thought honestly….I thought I was going to jail. Nobody had said what would happen to me”
Defender, rent arrears, received advice from in-court advice service, represented self in court
“Perhaps a leaflet or some form of information about what to expect, you know, how the process runs through….along with my letter to appear in court.”
Defender, rent arrears, represented by solicitor in court
In-court advice services
The Scottish Consumer Council, one of Consumer Focus’s predecessor organisations, established the first in-court advice service in Edinburgh alongside Citizens’ Advice Scotland, and has been a key supporter of their expansion. There are now six in-court advice services in Scotland, in Aberdeen, Airdrie, Dundee, Edinburgh, Hamilton and Kilmarnock. The Scottish Legal Aid Board assumed funding responsibility for these services in April 2009 and is working with them to build capacity where needed and ensure that they are responsive to the needs of those appearing in court unrepresented.
Consumer Focus Scotland is also submitting its written evidence to the Public Petitions committee of the Scottish Parliament on the introduction of ‘McKenzie Friends’ to assist unrepresented litigants The evidence states that Consumer Focus Scotland supports the introduction of McKenzie Friends, and that while the research does not purport to offer a definitive conclusion on the views of court users, it does suggest that unrepresented litigants might benefit from the opportunity to have a McKenzie Friend with them in court, who could provide them with moral support and other appropriate assistance. Having such support available could help take away some of the fear associated with appearing in court and therefore potentially improve the experience of unrepresented litigants in court.