Lord Gill’s Civil Justice reforms ‘cherry picked’ in Law Society report as lawyers rush to protect ‘Victorian’ business model over access to justice

Law Society finally submit their proposals to cherry-pick Lord Gill's Civil Justice reform recommendations. AFTER well over a year since the Lord Justice Clerk, Lord Gill published his damming 2009 Civil Courts Review investigation of what he himself branded Scotland’s “Victorian” justice system, the Law Society of Scotland have today finally submitted their own recommendations, effectively cherry picking ‘some’ of the reforms recommended by Lord Gill which the Law Society feel are broadly in favour of the legal profession’s vested interests, while also recommending the Scottish Government form a Civil Justice Council for Scotland, which unsurprisingly will be driven by the Law Society itself.

Lord Gill. The Lord Justice Clerk, Lord Gill spoke at last year’s Law Society of Scotland’s 60th Anniversary Conference, castigating 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, have notorious delays and high costs to litigants, deter claims which may be well-founded and branded its procedures as frustrating and obstructive rather than facilitating the achievement of justice. I recently reported on the one year plus, anniversary of Lord Gill’s Civil Courts Review, and the lack of any progress on the Lord Justice Clerk’s recommendations to reform Scotland’s ‘Victorian’ civil justice system, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

Law Society now ‘support’ the introduction of McKenzie Friends, as long as they are not paid and don't compete with solicitors. Among the many recommendations of Lord Gill which the Law Society makes supportive comment, the question of the introduction of McKenzie Friends, which the Law Society & Faculty of Advocates both initially opposed during hearings at the Scottish Parliament into Petition 1247 (McKenzie Friends for Scotland), has now attracted a ‘qualified support’ from the Law Society.

The Law Society’s submission to the Scottish Government on the issue of McKenzie Friends states : “The Committee has had the opportunity of further debating the issues and is supportive of the introduction of McKenzie Friends. The Committee agrees that there should be an automatic right to use a McKenzie Friend. However, it should be within the court’s discretion to insist on a withdrawal of a McKenzie Friend if it determines that the position is being abused.”

However, and not unexpectedly, the Law Society has now revealed its official opposition to the prospect of McKenzie Friends (lay assistants) being paid for their services in Scottish courts – an opposition borne out of the Law Society’s fear of its member solicitors losing business to vastly cheaper McKenzie Friends. While Scottish McKenzie Friends are prohibited from being paid for their work, existing case law in England & Wales supports McKenzie Friends receiving some form of remuneration.

The Law Society stated, with regard to their opposition to McKenzie Friends being paid a fee : ”The Committee would be concerned if Mackenzie Friends were remunerated for their assistance. The Court of Session Rules Council has drafted a Rule on the basis that Mackenzie Friends will not be paid, which the Committee supports.”

Law Society report also recommended spying on McKenzie Friends with an online register. In a sinister twist with overtones of unwarranted spying by the courts & legal profession on individuals appearing in court as McKenzie Friends, the Law Society submission to the Scottish Government also recommended keeping a register of people who appeared in Scottish courts as McKenzie Friends, enabling those individuals ‘to be monitored’. The Law Society’s justification for spying on McKenzie Friends states : “There is also a concern if Mackenzie friends provide assistance to a large number of unconnected party litigants. This should perhaps be monitored. One option would be for an on-line register of all persons who appear as McKenzie Friends.”

Consumer Focus Scotland & Lord Gill support wider public legal education, as do now the Law Society, to a certain extent. Regarding Lord Gill’s recommendation of ‘wider public legal education’, an issue championed for some time by Consumer Focus Scotland, and the subject of a recent petition (Petition 1354) to the Scottish Parliament, the Law Society’s submission states : “The Committee welcomes public legal education. The Committee believes that public legal education helps overcome hurdles which may impede access to the legal system and accordingly access to justice.”

“The Committee welcomes the current in-court advice project and believes that the project initially started in Edinburgh Sheriff Court should be extended throughout all Sheriffdoms in Scotland. At present, unrepresented litigants, through the in-court advice schemes, can receive advice before their case calls in court. These initiatives clearly improve access to justice but require to work in conjunction with a properly funded legal advice scheme giving access to advice by solicitors. Although there are other in-court advisory schemes, the one in Edinburgh is free and should be the model for other such advisers.”

It took 19 years to raise Scotland’s small claims limit from £750 to £3,000, now the Law Society wants to limit the value of Sheriff Court cases once again. Another of the Civil Courts Review recommendations, namely that of the increase in values of claims the Sheriff Court can hear, from its current level of £5,000 to £150,000, received a more frosty response from the Law Society, who, unsurprisingly, with its members potentially losing business & Court of Session appearance fees, claimed : “The Committee is very keen to retain the Court of Session as a court of first instance for suitable cases. The Court of Session is a centre of excellence, which is well respected for both the high level of judicial expertise and the guidance which it provides to the lower courts, both as a court of first instance and as an appellate court.”

The Law Society preferred a smaller increase in Sheriff Court case values, stating further in its submission : “Taking account of these views and of those who deal with other types of litigation, including commercial actions, the Committee consider that an appropriate threshold for Civil cases in the Court of Session would be not less than £20,000 and not more than £50, 000. i.e. The privative jurisdiction of the Sheriff Court should be increased from the current £5,000 to at least £20,000 but should not be more than £50,000.”

With further regard to personal injury claims & the value of cases, and Lord Gill’s recommendation that a specialist personal injury court should be created, based in Edinburgh Sheriff Court but with jurisdiction throughout Scotland, giving pursuers a choice between local access to justice or the advantages of a Sheriff Court with all Scotland jurisdiction, the Law Society categorically opposed the idea, stating : “The Committee is not persuaded there is a rationale for the introduction of a national Personal Injury Sheriff Court in Edinburgh or any other single location. The Committee still favours specialisation for Sheriffs in each Sheriffdom. Much depends on the privative level of the Sheriff Court. If appropriate specialists are employed and the threshold were to be set between £20,000 and £50,000 there is no need for a national court.”

Scots have waited 27 years for Class Actions, will have to wait some more. On the issue of Class Actions or multi-party actions, also recommended for introduction by Lord Gill, the Law Society disagreed with some of Lord Gill’s views, doubtless in an effort to prolong the introduction of class actions to Scotland’s civil justice system. The Law Society’s submission to the Scottish Government on the question of the introduction of class actions to Scotland states : “The Committee do not agree that judicial discretion should be exercised to determine whether a multi-party litigation is an opt-in or opt-out (ie included unless they tell the court that they do not wish to be included) for claimants. The Committee consider that depriving an individual of the right to litigate requires primary legislation. This is an important question of access to justice.”

The Law Society also disagreed with Lord Gill’s recommendation that Petitions for judicial review should be brought promptly and, in any event, within a period of three months. The Law Society instead claimed : “a three month time scale is too tight to exhaust all the administrative options. Six months would be a more manageable and appropriate period, particularly if the court had further discretion in the circumstances where it was just and equitable to allow a petition outwith the period.” The Law Society went onto agree with recommendations for tests on the success of Judicial Reviews, agreeing that a ‘sift’ panel should be introduced to remove Judicial Reviews which have no chance of success, with those who fail the first test being able to appeal to a second ‘sift’ panel.

On the question of ‘mediation’ in disputes, the Law Society stated that mediation and other forms of extra- judicial dispute resolution should be voluntary, and agreed that a free mediation service should be provided for claims under the new simplified procedure. The Law Society’s submission contended “such a [mediation] service would only be successful if it is funded and publicised by the Scottish Court Service and is effectively free to the users.”

The Law Society issued a Press Release, ever-imaginatively-titled Society urges Scottish Government to implement civil justice reforms, announcing its orders to civil servants & Scottish Ministers submission to the Scottish Government. Kim Leslie, convener of the Society's Civil Justice Committee, said: "Lord Gill's report identifies a number of structural and other weaknesses currently affecting Scotland's civil courts, and makes recommendations designed to make radical improvements which, if implemented, will dramatically alter the delivery of civil justice in Scotland. We made submissions to the initial consultation as part of Lord Gill's review and welcomed publication of the report in September 2009. We are now keen to see implementation of some of the key recommendations to improve civil justice in Scotland.”

"The scope of the review was huge, and the Society's Civil Justice Committee has not commented on every recommendation in the review, however one of our own key recommendations would be to separate civil and criminal business within the Sheriff Court because many of the current problems arise from the huge amount of judicial time which is spent dealing with summary cases.”

“We also support the view that there should be specialisation within the judiciary, in particular in administrative, environmental and planning law as well as family, commercial and personal injury cases. Such specialisation could be introduced without the need for primary legislation and at no great cost to the public purse - there has already been a successful pilot in Glasgow Sheriff Court of such a system and think this would be beneficial if rolled out across Scotland. The committee is also keen that there should be the option of using a commercial court in each Sheriffdom."

The Law Society’s Press Release went onto say the Society's Civil Justice Committee has also backed increasing the threshold for civil cases in the Court of Session, Scotland's highest civil court. Currently the threshold for cases to be heard in a Sheriff Court is £5,000 and the committee believes this should be raised to at least between £20,000 and £50,000 to allow business to be directed to the appropriate level competent to deal with it.

Ms Leslie said: "Any increase in the threshold for cases to go before the Sheriff Court must coincide with the introduction of specialist sheriffs. We would also endorse the creation of a third tier, dealing with appropriate cases to alleviate pressure on the civil justice system.

"We are in broad agreement with many of the recommendations made in the Civil Justice Review, although we have also taken the opportunity to outline reservations on some of Lord Gill's recommendations, such as a national Sheriff Appeal Court for civil appeals. We would now urge the Scottish Government to implement some of the recommended reforms including the establishment of a Civil Justice Council for Scotland, which would bring in the cost and funding of litigation as part of its remit.”

"We are keen to see the introduction of workable improvements to Scotland's civil justice system for all those who use it and work within it and look forward to working with government in bringing forward reform."

The full Law Society of Scotland Civil Justice Committee report can be read at: Law Society of Scotland's Civil Justice response or readers can directly download it as a pdf, here : Law Society Civil Justice response

Protecting law firms business & extortionate fees, far & above over the rights of ordinary Scots access to justice doesn't come any more obvious than today’s Law Society’s response to the recommendations contained in Lord Gill’s Civil Courts Review.

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

• Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)
  
• Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)
  
• Synopsis (215Kb)

Readers may also wish to gauge how Holyrood and the Scottish Government are treating the Civil Courts Review, from a report covering the last Holyrood debate on the subject, along with video footage, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

My coverage of the Civil Courts Review from its publication to the present, can be found here : Civil Courts Review - The story so far.