Sunday, January 24, 2010

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 response coverFaculty 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 gillLord 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 …

23 comments:

Anonymous said...

As everyone knows the status quo is not acceptable and the present justice system is 'failing society'.

Any costs - which the faculty has not specifically identified other than those which just might affect its own members - arising from removing this dreadful stain on Scotland's international reputation are nothing if the end result ensures a meaningful and proper access to justice for the Scottish Public - something self regulating organisations such as the Faculty of Advocates and the Law Society of Soctland know has been absent for many years.

Anonymous said...

Perish the thought these 'reforms' could affect an advocate's fees !

Anonymous said...

"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 … "

Yes my good sir it certainly is !

Its also a time to scrap those huge bills they get away with charging us for waffling away in sub-tongues making us believe they are helping us when all they are doing is running up the meter !

Anonymous said...

Faculty of Advocates obviously too used to being in charge of the courts - which is why we are in "Victorian" mess Lord Gill eludes to.

Anonymous said...

Yes Peter I suppose it was only a matter of time before they began tearing down Brian Gill's review.

No doubt the Law Society will soon follow with their acceptance/rejections of what we had all hoped was a much needed update to the legal system.

Keep up the good work !

Anonymous said...

Is that right?
They are saying legal aid to fund class actions?

Anonymous said...

Removing cases from the Court of Session to Sheriff Courts will cut the advocates business so of course they are going to be against anything like that !

Anonymous said...

advocates = highly paid robbers

Anonymous said...

Personally I doubt if any of the Gill proposals will end up in the public domain as the legal mafia have too much to lose

Anonymous said...

There are about 460 advocates am I right ?
So what we have here is 460 people holding all Scotland to ransom over their judicial rights just to be able to charge what they want ?

I say go with Gill !

Anonymous said...

Managed to read through the Faculty's response and just as you say all about protecting their market.When do we get to hear MacAskill caves into all of their demands ?

Anonymous said...

“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."

Is not the same as having a right to a McKenzie Friend - FoA are up to their tricks again so you better expose them on this Peter

Anonymous said...

BBC NEWS

Prosecutor admits drink driving
Anne Hart, who was caught drink driving

Anne Hart collided with a parked car in Dundee

A prosecutor who crashed into a parked car while drunk at the wheel has been banned from driving for 18 months.

Anne Hart broke her sternum and right arm when her Audi hit a parked car in Dundee and flipped onto its side.

Hart, 39, who has now resigned from the fiscal service, admitted drink driving She was also fined £400.

The case came 10 months after Hart was cleared of being drunk in charge of a vehicle in a separate incident, despite being three times over the limit.

Anonymous said...

Interesting report Peter and encouraging on the McKenzie Friend issue. I agree the reforms should encompass Lord Gill's report, and the process must be speeded up so that court processes do no go on for long periods.

People need access to justice without exorbitant legal fees and the latter is all most of the legal profession are interested in.

Anonymous said...

I understand the Law Society have been conducting a whispering campaign against the civil courts review for some time so like you I expect to see their more 'up front' version quoted in ever sympathetic newspapers very soon.

Anonymous said...

Mr Keen's colleagues are keen to protect their interests. This is what we expect.

Anonymous said...

I know an advocate who demanded (and received) a cash sum for defending an accused while he was also getting paid by legal aid

Interested ?

Anonymous said...

http://www.lawgazette.co.uk/news/lawcare-helpline-sees-surge-solicitor-calls

LawCare helpline sees surge in solicitor calls
Thursday 21 January 2010 by Jonathan Rayner

A charity that provides pastoral support to solicitors has recorded its busiest year to date, with a 10% rise in lawyers reporting stress and other problems.

LawCare opened 549 case files last year, up 10% on 2008. Calls to the helpline were becoming ‘longer and more complex’, the charity said, as solicitors face financial and emotional difficulties as a result of the recession.

Of the 549 cases dealt with, 410 related to stress, 47 to clinical depression, 32 to alcoholism, three to illegal drugs and 57 to eating disorders, panic attacks, obsessive compulsive disorder and other issues. More than 2,500 additional telephone calls were made or taken in relation to these cases – a quarter more than the previous year.

Just over half of callers were able to identify a primary cause of their distress. A quarter of these cited redundancy, 24% financial problems, 20% disciplinary issues and 17% bullying. Others cited relationship problems, ethical issues and bereavement.

LawCare chief executive Hilary Tilby urged lawyers to contact the support line before the problem became too severe to treat discreetly. ‘Don’t leave it too late. The LawCare service is absolutely confidential,’ she said.

The charity has received calls from every branch of the profession, Tilby added, including solicitors employed in private practice, sole practitioners and barristers.

The LawCare helpline number is 0800 279 6888. The Law Society’s pastoral care helpline is 020 7320 5795.

HAHA ! Dont feel sorry for them one bit !

Anonymous said...

The Public Benefit is the most important consideration, not the faculty of Advocates looking after their economic interests.

Anonymous said...

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.#

There is plenty public dissatisfaction with the present system but our voices are being drowned out by lawyers and advocates only interested in making more money which is nothing to do with justice.

Peter Cherbi said...

Thanks for all your comments on this article.

# Anonymous @ 9.34am

Yes, I had sight of one of their 'briefing' documents against the Civil Courts Review today ...

I'm sure it will be in the public domain soon ...

Clearly as you all indicate, the public's unobstructed access to justice is far more important than the Faculty's greed to retain their business market model, which has in itself contributed to the woes of Scotland's civil justice system which necessitate the radical reforms of Lord Gill's review, and much more.

Whether we get the reforms is another matter .. as I understand the Scottish Government's Justice Department is keen to slow things down ... anyone would think the civil servants are too interested in allowing lawyers a continued free hand in milking the public for astonishingly poor legal practice ...

Anonymous said...

LawCare opened 549 case files last year, up 10% on 2008. Calls to the helpline were becoming ‘longer and more complex’, (GOOD) the charity said, as solicitors face financial and emotional difficulties as a result of the recession. (PEOPLE OF SCOTLAND, A GOOD REASON FOR PREVENTING YOUR LAWYER DEALING WITH YOUR MONEY).

Of the 549 cases dealt with, 410 related to stress (CLIENT STRESS IS MUCH WORSE), 947 to clinical depression (GOOD), 32 to alcoholism (WONDERFUL), three to illegal drugs (NO SURPRISE THERE) and 57 to eating disorders, panic attacks, obsessive compulsive disorder and other issues. More than 2,500 additional telephone calls were made or taken in relation to these cases – a quarter more than the previous year. GOOD.

Just over half of callers were able to identify a primary cause of their distress. A quarter of these cited redundancy (AT LEAST YOU LAWYERS DID NOT GET OCCUPATIONAL INJURY AND IT WAS COVERED UP, OR YOUR FAMILIES INHERITANCE STOLEN) ), 24% financial problems (CLIENTS HAVE FINANCIAL PROBLEMS TOO GETTING THEIR MONEY BACK), 20% disciplinary issues and 17% bullying. Others cited relationship problems, ethical issues and bereavement.

WELL LAWYERS THIS IS POETIC JUSTICE, YOU ARE REAPING WHAT YOU HAVE SOWN. YOU SHOULD ALL PAY ATTENTION TO THE COMMANDMENT "THOU SHALT NOT STEAL". PERHAPS IF YOU HAD, THE PROFESSIONS COLLECTIVE REPUTATION WOULD NOT BE IN THE GUTTER.

Anonymous said...

LawCare opened 549 case files last year, up 10% on 2008. Calls to the helpline were becoming ‘longer and more complex’, the charity said, as solicitors face financial and emotional difficulties as a result of the recession.
=====================================
LawCare, you will get more calls. Why? Clients are getting wise, they know walking into a law firms office is dangerous, for their health, wealth and happiness. I tell my kids every time I see a lawyers office, these people will steal your money and you will not be able to get it back. They tell their friends at secondary school, people of all ages need to know what they are up against. The recession will end, but you cannot repair the damage you have done to yourselves through your criminally corrupt provision of legal services, the latter term does not exist, more legal miservice.