Process of ‘watering down’ Lord Gill’s civil courts reforms begins as Faculty of Advocates question public benefit, costs of access to justice changes

Faculty of Advocates raise questions over civil justice reforms. It seems the not unexpected process of ‘watering down’ the huge changes to Scotland’s CIVIL JUSTICE system proposed by Lord Gill in his recently published Civil Courts Review, which took two years to complete, and saw Scotland’s civil justice system described as being “Victorian”, has begun with the first salvoes being fired by the Faculty of Advocates, who issued their public response to Lord Gill’s civil court reforms last Thursday.

While the Faculty announcement began by stating they supported many of the practical recommendations in the Scottish Civil Courts Review, the Faculty expressed serious doubts about whether the substantial cost involved in proposed structural changes to the court hierarchy would increase efficiency or lead any other significant public benefit.

The full 62 page Faculty of Advocate response to Lord Gill’s Civil Courts Review is here : Download the Faculty Response (.pdf - 879KB)

The Faculty picked out one point in its press release, regarding Lord Gill’s proposal to remove from the Court of Session cases worth less than £150,000, allowing such cases to be considered in Scotland’s Sheriff courts, where currently the limit is around £5,000. This is of course, where advocates earn most of their huge fees, representing civil cases in the Court of Session, so one would naturally expect advocates to be a little queasy at the thought of losing a large chunk of their income …

The Faculty said : “While it is not opposed in principle to raising the current limit of £5,000, the Faculty describes the proposed £150,000 figure as "inexplicably high" and adds: "It is three times the figure that applies to equivalent courts in England and 10 times that in Northern Ireland."

The Faculty went onto claim “as far as the jurisdiction of Court of Session is concerned, there is no evidence of public dissatisfaction with the present system but a change along the lines proposed in the Gill Report would displace more than 2,000 cases out of a total of 3,400 to the Sheriff Court.” - they must be looking in all the wrong places to be able to make such a claim .. or perhaps not looking at all …

The Faculty’s release stated : "The Faculty would submit that there should be far greater research into relative costs of litigation in the Sheriff Court and the Court of Session before a properly informed decision of appropriate level of the privative (exclusive) jurisdiction of the Sheriff Court can be made."

The Faculty response continued, pointing out that the majority of personal injury cases in the Court of Session are conducted on a "no win no fee" basis under which advocates and solicitors are paid by the recovery of judicial expenses from the losing side. Pursuers who raise damages actions in the Court of Session are entitled to the services of counsel but the Faculty’s response “notes that the Gill Report is silent on whether there would be sanction to use counsel in the Sheriff Court.”

The Faculty one again commented : "Without such certification the effect of increasing the limit (to £150,000) would be to exclude access to an independent referral Bar in those personal injury cases which proceed in the Sheriff Court. An important right that most pursuers in such actions currently have would thereby be removed."

“Oh how the quest to retain fees does tend to colour one’s response to reform” – said one legal insider.

On the brighter side, well, slightly, Page 55 of the Faculty’s 62 page response on the Civil Court Review supports the implementation of McKenzie Friends for Scotland, something I have long reported on. You can read more of my coverage of the campaign to bring McKenzie Friends to Scotland here : Bringing McKenzie Friends to Scotland - The story so far

Faculty of Advocates on McKenzie Friends : McKenzie friends Recommendation 149

“The Faculty would contend that a person without a right of audience should be entitled to advise a party litigant in court but only where the court considers that such participation would be of assistance to it. The Faculty recognises the merit in the recommendations that the court should be entitled to refuse to allow any particular person to appear on specific grounds relating to character and conduct and that the rules of court should specify the role to be played by the individual and should provide that he or she is not entitled to remuneration.”

The Faculty there again expressing the legal profession’s obsession in ensuring that anyone standing as a McKenzie Friend to assist an unrepresented party litigant in a Scottish Court, receives no financial reward for doing so … not that I am in favour of McKenzie Friends being able to charge clients a fee for their services to the tune a solicitor does, but come on, how is this going to be enforced if a client who wins their case decides to give a compensatory reward to their ‘free’ McKenzie Friend later on ? I do hope for instance, we are not going to see the likes of Richard Keen, the Dean of the Faculty chasing people around for receiving a box of Milk Tray for their help to those many members of the public the Faculty itself, and not forgetting of course, the Law Society solicitor membership have denied court access …

On the subject of Class Action litigation (Multi party actions), the Faculty’s response also supports the long time coming introduction of such litigation to Scots Law, stating on Page 25 of their response, Chapter 13 (Multi-party actions) : “There should be a special multi-party procedure.”

The report also says that “Where a number of pursuers have a common factual or legal basis to their claims but initiate proceedings on an individual basis, it should be open to defenders to apply to the court, or for the court on its own initiative, to transfer the cases to the multi-party procedure.”

The Faculty suggested, with regards to public funding of class actions : “There should be a special funding regime for multi-party actions which could be administered by SLAB (The Scottish Legal Aid Board). If a person seeks public funding to bring a multi-party action, that should be by way of an application to the multi-party action fund. Class members who are not representative parties should be able to apply for civil legal aid.”

It should be noted, the Faculty expressed support for the principle of providing the public with a just, fair and cost-effective resolution of legal disputes, saying : "It is beyond argument that not every part of the current system works efficiently, but the radical restructuring exercise proposed is not necessarily the answer. The answer lies in reform of current practice and procedure which the Faculty of Advocates fully supports."

However, the Faculty’s arguments to tweak, fiddle and meddle around with current practice & procedure will definitely not give Scotland anywhere near the reforms proposed in Lord Gill’s Civil Courts Review.

Lord Gill described Scotland’s civil justice system as “Victorian” and failing society. As Lord Gill himself said in his speech to last year’s Law Society of Scotland's 60th Anniversary conference : "The civil justice system in Scotland is a Victorian model that has survived by means of periodic piecemeal reforms. But in sustance, its structure and procedures are those of a century and a half ago. It is failing the litigant and, therefore, failing society."

"If you were to sit down and devise a justice system for the 21st century, it would be nothing like we have. The judicial structure should be based on a proper hierarchy of courts and the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish justice fails on all these counts. Its delays are notorious. Its costs deter litigants whose claims may be well founded. Its procedures cause frustration and obstruct, rather than facilitate the achievement of justice."

I’m not against everything the Faculty say in their reaction but given my own experience in Scotland’s civil justice system, and the experiences of many reported to me over many years, I think I would sooner take the recommendations of Lord Gill, who for probably the first time in Scotland’s legal establishment, told us exactly how inadequate, creaky, and unfit for purpose, our beloved Scots Law really is …

Surely this is a time to reform, rather than tweak and twiddle with the curtains as those earning a substantial crust at clients cost, might have us believe …