Wednesday, October 27, 2010

Access to justice ? Scots criminal law changed by UK Supreme Court in a day, ‘Victorian’ civil justice reform proposals ‘growing older by the year’

Debating chamberScottish Parliament will pass swift amendments to Scots criminal law today but what of civil justice reforms. MOTIVATION to change, reform or ‘tamper with’ the Scottish justice system comes in all shapes & sizes, although it appears no motivation for change in recent times has come more forceful than yesterday’s UK Supreme Court ruling on Cadder v HMA, which has today brought a hurried, ill tempered Scottish Parliament debate on significant changes to Scots criminal law, focussing on mostly the rights of accused to have a solicitor present while being questioned by Police.

Kenny MacAskillJustice Secretary Kenny MacAskill called Scotland’s Justice system proud & distinctive, admired by others. A rather reluctant-to-change (to put it mildly) Scottish Justice Secretary, Kenny MacAskill said yesterday in the Scottish Government’s media release to the Supreme Court’s decision, the Scottish justice system was, or is “… a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons. It is rightly admired by other jurisdictions.” however, many of the actual users of the Scots justice system, whether relating to civil law or even criminal law, do not appear to share Mr MacAskill’s distorted vision of a justice system which appears more to hold Scots hostage to the past, and hostage to injustice, rather than being a beacon for fairness for all Scots it very much should be.

Fortunately there are ample critics of our ‘proud, distinctive justice system’, even from within its own ranks, and in a week which began with European Civil Justice Day, a day which the Scots justice system apparently is contented to celebrate as being at least 100 years behind the civil justice systems of most of Europe, and many other jurisdictions, it is a fitting time to remind ourselves of the work put in by the Civil Courts Review team & Lord Gill on the Civil Courts Review, while looking around at what has changed or been reformed in Scots civil law. The Scottish Parliament debate on the Civil Courts Review, reflected a rather less than break neck speed attitude towards reforming civil law, which I reported on in an earlier article HERE

Lord GillThe Lord Justice Clerk, Lord Brian Gill spoke to the Law Society of Scotland’s 60th Anniversary Conference held on 8th May 2009, giving his verdict on his two year Civil Courts Review, branding Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms”. Lord Gill went onto say Scottish civil justice fails on many counts, has notorious delays and high costs to litigants, deterring claims which may be well-founded and branded its procedures as frustrating and obstructive rather than facilitating the achievement of justice.

Lord Gill’s speech to the Law Society 60th anniversary conference, follows :

The Lord Justice Clerk, Lord Gill : I am honoured to be invited to talk about the Scottish Civil Courts Review to a gathering of lawyers who will be most directly affected by the outcome. We began our work in April 2007 and will soon submit our Report to the Cabinet Secretary for Justice. I have been saying for years that such a review was long overdue and that it is important that the outcome should be change that is significant and lasting. This is not the time for tinkering with the system. We have had that for a century or more. But it is not the time to cause upheaval by introducing changes that may require to be amended within a short time. This review is an opportunity to make a lasting difference.

We have carried out a wide-ranging examination of the structure of the courts, their jurisdictions and their procedures. We have amassed a body of information never before collected in one source. We have received evidence from respondents to the consultation paper, from statistical data compiled by SCS and from comparative studies of other jurisdictions. We have also held numerous meetings with interested bodies and individuals.

I am grateful to all those who have helped us in our study. Over 200 individuals and organisations gave us their views and ideas. We may not know what the answers are but we certainly know what the problems are. Our work has also been informed by what is done in other jurisdictions. The difficulties which we have identified are often reflected in work being done elsewhere. That does not mean that there are ready made solutions to be found elsewhere. Systems are different in other jurisdictions, with practical and cultural implications for every change proposed. Decisions taken reflect a wide range of influences which will be different in every country. It has nonetheless been useful to learn what we can from others’ work.

The responses to the consultation paper were clear on the areas where reform is needed. It was reassuring that the issues that we had provisionally identified seemed to be on the right lines. We have been surprised by some of the points being made and experiences related to us. We have heard from legal practitioners at an individual and a representative level; members of the judiciary, court users; advisory bodies; and many more. There are relatively few matters where a possible solution would be universally acclaimed; but there are a few areas where there is strong consensus. So while we will not please some people, I hope that we will not antagonise everybody.

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.

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.

You may think that the profession has enough to contend with without also having a civil courts review as well. I sympathise with that view. In over 40 years in the profession, I have never experienced times like these. But there is never an ideal time for change. So I urge you to be receptive to the conclusions of a lawyer-led programme for reform, if only for fear of something worse.

If you were to sit down and devise a civil justice system for the 21st century, it would be nothing like what we have. But the Review is not a clean-sheet exercise. We have to practise the art of the possible. What that points to is:

a) in the immediate future, swift and properly-resourced reforms that will check the system’s present drift; and

b) in the longer term, the establishment of a mechanism by which the system will constantly adapt and renew itself rather than lurch into piecemeal reforms every two or three decades.

This is a once-in-a-generation opportunity. I think that the Scottish Ministers recognise that. What we will offer will be an integrated set of proposals that will give the best prospect of change if adopted as a package. It would be regrettable if only the easy gains were to be cherry-picked to give the semblance rather than the reality of reform. It would be a breach of protocol, and a discourtesy to the Cabinet Secretary, if I were to discuss the conclusions of our Review. But I think that it may help to set the context in which our report will be drafted if I identify the main topics and let you know the way the wind was blowing in our consultation exercise.

The consultation process and the research undertaken by the Review Team suggest that the issues fall into three broad categories: access to justice, delay, and inefficiency.


Fundamentally this is about the cost of accessing the civil courts - both real and perceived. Looking at the position in other countries, I think that we are fortunate in Scotland to have a system of legal aid which is not capped. The system itself does not fall within the remit of the Review; but we welcome the recent increase to the upper disposable income threshold introduced by the Scottish Government. There remain concerns however about whether the civil court system in respect of costs generally supports access to justice in all circumstances.

For example, although speculative fee arrangements of various kinds are now common in reparation actions, there are many other types of action that are unlikely to be funded on this basis; for example, family actions. In complex reparation actions, such as claims in relation to medical negligence, it may be difficult for claimants to find a solicitor willing to act on a speculative basis and after the event insurance premiums may be prohibitively expensive.

Many respondents drew attention to the unreasonable cost of litigation and to the fact that, where speculative fee arrangements were not available, many potential litigants may not be able to afford to assert their rights. There is also the deterrent effect of the risk of an adverse finding in expenses if the action fails.

The shortfall between party and party expenses and agent and client expenses was also referred to, in particular, in relation to commercial litigation in which it was submitted that recovery rates are much lower than in England and Wales and that this operates as a disincentive to litigating in Scotland. In England and Wales, the average recovery rate is also the subject of complaint. Concerns were also expressed about the system of taxing judicial accounts of expenses.


We have not been surprised to find that there is a strong feeling that the pressure of criminal business, in terms of volume and the priority assigned to it, is having a detrimental impact on civil business in both the Court of Session and the sheriff court. Lengthy waiting periods for proofs and the deferment or interruption of cases to make way for criminal business all cause concern and add to expense.

There have been other causes of delays. For example, respondents complained of delays in issuing judgments in the Court of Session. Our attention has been drawn to numerous cases in which the delay was excessive. We were surprised by the depth of feeling on this matter. This is important for everyone. For those litigants in the commercial field who have a choice of where to litigate, the prospect of delay can outweigh the competitive advantage which Scottish solicitors are able to offer. A number of solicitors practising in the commercial field have said that they had lost business as a result of the length of time it takes for cases to be resolved, particularly if there is an appeal. That is not good for Scotland.


In the context of remedying inefficiency the areas that require to be considered urgently are (a) the appropriate use of judicial resources, including part time resources; (b) specialisation; (c) case management; and (4) IT.

In response to questions regarding the allocation of business between the Court of Session and the sheriff court, many respondents favoured the status quo; but many others suggested that there is too much low value litigation in the Court of Session, and the sheriff court too, and that this has an adverse effect on the expeditious conduct of other business. It was suggested that it was not a cost effective or appropriate use of judicial resources. Many respondents were in favour of the creation of a new level of judicial officer to deal with lower value cases and were generally of the view that this should be a professional post.

We also received representations on the use made of temporary or part time resources in the Court of Session and the sheriff court. Part time appointments were conceived to provide flexibility in dealing with emergencies and unexpected peaks of work. The reality is that they form a permanent and integral part of the court programme in both the Court of Session and the sheriff court. The programme could not be delivered without them. Respondents have complained that part time justice may lead to inconsistent decision making and poor case management. They have also expressed concern about the appropriateness of part time judges and sheriffs sitting in courts in which they commonly practise. This may not be good for the appearance of things.

There was considerable support from practitioners and court users for a greater degree of specialisation, particularly at sheriff court level, and for a more proactive system of case management. The way in which court programmes are structured at present and the demands of summary criminal business make it difficult to ring-fence civil business, or to provide a degree of specialisation or continuity, in all but the largest courts. Family practitioners, in particular, were concerned about a lack of continuity and consistency in decision making in cases involving children. Those involved in referrals from children’s hearings and adoptions were concerned about the problems of allocating hearings of sufficient length for complex cases. As a result hearings took place for a day or two at a time over extended periods, often of several months or more. This cannot be right in an area of law in which the child’s best interests are a paramount consideration.

The proposal, canvassed in the consultation paper, to establish regional civil justice centres where specialist sheriffs would be based did not attract much support. It was felt that this would be expensive to set up. There was a strong view that family cases should be dealt with locally in view of the need for parties to attend child welfare hearings and the fact that urgent interim orders are often sought in such cases. Concerns were expressed about access to justice if parties were required to incur the cost of travel to a regional centre rather than have their case heard in the local sheriff court.

Housing was another area where it was thought that a greater degree of specialisation was desirable. A number of respondents favoured the establishment of a specialist housing tribunal or an expansion of the jurisdiction and remit of the Private Rented Housing Panel. Others, including those representing the interests of tenants, thought that housing cases raise important and complex issues of law and should remain within the sheriff court. There was, however, considerable support for improving the procedure in housing cases, placing greater emphasis on alternative dispute resolution, and exploring alternative methods of supervising payment arrangements.

On the issue of mediation and ADR, respondents who had experience of court proceedings as litigants, and organisations representing the interests of litigants, tended to have a more positive attitude towards mediation and other forms of dispute resolution than respondents from the legal profession. This suggests that litigation is not currently providing all that people want in terms of dispute resolution processes and that there is a desire for the civil justice system to provide a broader range of options.

There was a fair degree of consensus that mediation was not appropriate in cases where there was a need for a judicial precedent or a declaration of legal rights, but there was no evidence of concern that greater use of mediation might lead to “loss of law” or harm the development of Scots law. On the contrary, some respondents suggested that one of the benefits of greater use of mediation would be that court resources would be freed up to deal more expeditiously with cases that genuinely need judicial determination.

There was scarcely any support for the idea that mediation should be a compulsory first step, as a condition precedent to the raising of a litigation. There has been considerable support for the proactive case management model adopted in the commercial court in the Court of Session and in the commercial court, the personal injury pilot and the family court in Glasgow sheriff court. There was general agreement that the impact of the reforms to the ordinary cause rules in the sheriff court had lessened with time and that options hearings had become a formality where the principal agents did not appear personally. This leads to drift and multiple continuations. There was support in principle for a more actively case managed system, although views differed as to how this could be achieved if there was no continuity or “case ownership” by the judiciary.

Complaints were also made about the use, for tactical reasons, of over elaborate and technical pleadings; and late disclosure of documents or evidence. There was particular concern that procedures are not sufficiently geared towards efficient use of court time.

The majority of respondents supported the proposition that greater use should be made of IT. In particular, there was considerable support for electronic filing and transmission of documents to the court; for the creation of electronic processes or case files; for the use of telephone or videoconferencing facilities for procedural and, where appropriate, substantive hearings; for the ability to file and process certain types of claim on-line; for the digital recording of evidence; and for advice and self help guides to be available on-line to assist those without legal representation. Scotland is far behind many other jurisdictions in its use of IT. There are obvious resource problems, but even if IT is a medium to long term project, there are quick and easy gains to be made in the introduction of more efficient, streamlined case management systems.

Also within the concept of inefficiency is the question of the management of party litigants in the civil courts. It was clear from our consultation that party litigants create significant difficulties, for the courts and for their opponents, and can result in a significant waste of judicial time. It is a party litigant’s right to represent himself but we have to acknowledge that this should not be at the expense of other court users. We must therefore look at how best to support and manage party litigants to minimise disruption. That raises the related problem of abuse of process.


We intend that our proposals will set out a pragmatic and practical programme of reform. They will not please everyone; but please approach them with an open mind. Please also recognise that they are the product of two years of dedicated work by the Review Team, whose efforts are beyond praise. I am grateful for the opportunity to thank the Team publicly. The Review has been a considerable undertaking and I am proud to have had the privilege of leading it.


Anonymous said...

Megrahi was in prison for 7 years and then released - peanuts compared to the 15 sentence you wrote of Mr. Wilson enduring in his claim against Motherwell College.

McAskill may be proud to be a member of the travesty that is the Scottish Justice System, but he is surely aware of the contempt in which it is widely held, both here and abroad.

High time this apologist for the Law Society of Scotland and its crooked insurer was kicked out of office.

Anonymous said...

Lord Gill's speech kind of kills off any lingering thought there is pride or fairness in Scots justice no matter what MacAskill or his stand in Fergus Ewing try to tell us.

Anyway now you've reminded us of that excellent speech by Lord Gill I think the good Lord Justice Clerk should be banging a few tables to see his review take shape.. or do we also have to look to London for civil reforms ?

Anonymous said...

Scottish justice at its best picking on an pensioner !

Pensioner liable for Donald Trump golf court expenses

A pensioner who has dropped a legal challenge to the Donald Trump golf plan has been found liable for court expenses.

US tycoon Mr Trump hopes to build the "world's greatest golf resort" at Menie, north of Aberdeen.

Molly Forbes, 86, raised judicial review proceedings at the Court of Session but has dropped her case.

A judge has ruled Trump International Golf Links and Aberdeenshire Council were entitled to expenses.

Lord Kinclaven said: "On the information before me the appropriate course is to find the petitioner (Mrs Forbes) liable in expenses to date.

"There is no good reason for withholding that finding."

The judge said that the motions for an award by the local authority and golf developer were "irresistible".

But he said the court did not have to pass decree for immediate payment and he was prepared to allow Mrs Forbes an opportunity to make further submissions on modification of her liability for expenses.

Andrew Smith QC, for Mrs Forbes, earlier told the court: "Mrs Forbes couldn't afford to meet any award of expenses."

Trump International Scotland said in a statement: "It is regrettable that an elderly woman has been used to front this frivolous court action.

"There are consequences for filing a baseless claim and her son and lawyers should pay the expenses."

A spokesman for Aberdeenshire Council said: "The court has fixed a further hearing for 11 January at which Mrs Forbes will be allowed to seek to have these expenses modified if her Legal Aid position has been resolved.

"The court has wide discretion regarding expenses and may modify her liability to nil, or otherwise limit the amount recoverable.

"Any decision on action to be taken by the council to enforce the award against Mrs Forbes before that hearing would therefore be premature."

Work on Mr Trump's golf course development got under way earlier this year.

The billionaire has said the total cost of the project is likely to be about £750m.

Some residents object to the plans, and have refused to sell their land.

Many opponents of the development have bought a stake in a one-acre stretch of land at the heart of the resort site in a bid to disrupt it.

As well as a championship golf course, the development includes a 450-room hotel, 950 holiday apartments and 500 residential homes.

Anonymous said...

He said that in May last year.Lets hope there is something more to report by May 2011 or MacAskill & co can go take a hike like Douglas Mill suggested the FSA did on regulating claims against corrupt lawyers

Anonymous said...

Looks like Lord Gill has been totally ignored by the parliament

Anonymous said...

Scottish justice made to look a fool by an English court - what a surprise !

On Lord Gill's speech to the Law Society I wish I had been there to hear that one - at last someone in the legal fraternity has the courage to stand up and tell it 'mostly' how it is !

Anonymous said...

MacAskill you are an abuser of human rights because you are not interested in protecting lawyers clients. You only see lawyers rights.

Anonymous said...

Justice Secretary Kenny MacAskill called Scotland’s Justice system proud & distinctive, admired by others.

No Kenny it is an abusers delight, a system with no balance of power. That is why client are abused, they are the rightness. We are not equal in legal terms Kenny, you an get legal representation, I cannot.

Anonymous said...

Clearly Gill's criticisms are wasted on the likes of MacAskill and his cloud cuckoo land admiration for Scots law which incidentally is not admired anywhere or by anyone other than the money grabbing bastards who operate it as a milking operation against their clients

Anonymous said...

I just want to let you know Mr Cherbi I asked to include Lord Gill's speech as part of a dissertation I was writing on aspects of civil law.
The Law Society claimed they had ownership of his speech and refused permission for me to use it.When I asked the Law Society if they had written it for Lord Gill a certain Law Professor who you may know warned me I may be kicked out of my course if I continued to pursue the subject.

Anonymous said...

We live in a country where a legal problem can easily become a legal nightmare because lawyers have carte blanche when dealing with clients.

I know it is not always possible but the best advice regarding lawyers, to avoid them at all costs. If you have a raw deal from one lawyer, the legal system automatically shuts down.

Anonymous said...

I wonder what Lord Gill would have to say to the claim that the Law Society owns his speech and that censorship now apparently enjoys a priviledged position in a University Law syllabus?

Perhaps Douglas Mill at Glasgow University could enlighten us?

Anonymous said...

The Scottish Parliament has rushed through a new emergency law, after a landmark legal ruling over the police questioning of suspects.

The UK Supreme Court upheld an appeal by teenager Peter Cadder, whose assault conviction was based on evidence gained before he spoke to his solicitor.
The Law Society water down the client protection in the Legal Services Bill. MSP's are bastards just like the Law Society they bend over for. Nothing democratic about our rotten parliament.

The police cannot question a suspect without a lawyer present. A client cannot get legal representation against a lawyer in a civil case. But of course the suspect in a criminal law situation is no threat to a lawyers reputation. A bent justice system is the only conclusion the logical thinker can arrive at.

I do not vote any more.

Anonymous said...

BBC News MSPs pass an emergency bill on Cadder ruling.

Enter Alex Salmond. The first minister intervened to point out that every other signatory to the ECHR was able to put its case directly to the European Court in Strasbourg.

Only Scotland was subject, because of the Scotland Act "anomaly", to an interpretation by the UK Supreme Court.

Our First Minister is a man who is selective on what he says about justice. A victim of a crooked lawyer Mr Salmond is barred from every court in the European Community.

Mr Salmond highlights difference when it suits him.

Anonymous said...

MSPs pass an emergency bill on Cadder ruling.

Mr MacAskill argued: "The scales of justice require we do now recognise the importance of a lawyer being in for interrogation and investigation.

Civil law Mr MacAskill, your scales of justice favour the Law Society.
Devolution is a disaster for Scotland. You Mr MacAskill alter what justice means to protect your legally qualified criminals.

Peter Cherbi said...

Thanks for all your comments on this article, which I'm happy to see are broadly supportive of the issues highlighted in the lack of will to reform access to civil justice compared with the moves passed tonight in the Scottish Parliament or as some would have us believe, 'forced law changes' regarding the Cadder v HMA Supreme Court decision ...

# Anonymous @ 21:46

If you would like to contact me or post an additional comment marked 'Do Not Publish" with more information on what happened regarding your attempt to use Lord Gill's speech.

As far as I am aware the Law Society did not write the speech for Lord Gill, nor can I imagine they own it !

Anonymous said...

If Peter Tobin was convicted of another murder next year but when questioned his lawyer was not present, his conviction would be unsafe.

A monster like Tobin has legal rights but civil lawyers ruin people with impunity. A clients crime is seeking redress against a lawyer. Mr MacAskill your explanation please.

Anonymous said...

I'm surprised MacAskill didnt ask Fergus Ewing to stand in for him in the debate as has usually been the case.Be part of something better is the SNP's election motto - what a joke !

Anonymous said...

Lord Gill should have gave his [excellent] speech to the Scottish parliament also thanks for posting this Peter I've been looking for it for ages and couldn't find it in full!

Anonymous said...

Given your reports of a distinct lack of action over Lord Gill's proposals (and yes I have also watched those video clips in your earlier reports of the Parliamentary debate) I feel it is now time for Lord Gill to come back and question why its taking so long to do something positive for civil justice when as we see in the news criminal justice can be changed in a matter of hours !

Anonymous said...

AOL news

Tributes have been paid to a "trailblazing" lawyer at a top immigration law firm who died after falling under a Tube train.

Sonia Burgess, 63, known professionally by her legal name David, was struck by a train at King's Cross station during the Monday evening rush hour.

Nina Kanagasingham, 34, of Chichele Road, Cricklewood, north-west London, has been charged with murder and appeared at City of Westminster Magistrates' Court. She was remanded in custody to appear at the Old Bailey on Monday.

Anonymous said...

Justice Secretary Kenny MacAskill called Scotland’s Justice system proud & distinctive, admired by others.

You have lost touch with reality Kenny.

Anonymous said...

Civil justice is a pot of gold for lawyers. Delay £ delay £ delay.

That is they they will not change it.

Anonymous said...

I think its time for Lord Gill to stand up and be counted otherwise his justice reforms are going to be talked away like everything else with politicians