Thursday, November 11, 2010

Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’

Lord GillLord Gill’s Civil Courts Review receives Government backing. PROPOSALS for civil justice reform including the implementation of Class Actions, increasing the financial limits of cases in Sheriff Courts, creation of a new judicial tier & ‘better case handling’ have finally been announced today by the Scottish Government in response to the Lord Justice Clerk, Lord Gill’s highly critical 2009 report, the Civil Courts Review, which branded Scotland’s civil justice system as being “a Victorian model that had survived by means of periodic piecemeal reforms”, to the point of being such a failure at providing Scots with access to justice, “its procedures as frustrating and obstructive rather than facilitating the achievement of justice.”.

The announcement today by the Scottish Government, follows yesterday’s Law Society of Scotland’s response to Lord Gill’s Civil Courts Review, this time giving the current SNP administration’s political version of which of the proposals made by Lord Gill will actually be implemented. Unsurprisingly, it will take the Scottish Government several years to bring in the proposed reforms, meaning the current Victorian state of Scotland’s justice system will continue for as long as possible a little longer.

Kenny MacAskillJustice Secretary Kenny MacAskill announced Scottish Government’s response to Civil Courts Review. The Justice Secretary Kenny MacAskilll, making a surprise appearance to announce the Government’s response (surprising in that it has been so far left to Communities Safety Minister Fergus Ewing to lead the Holyrood debates on the Civil Courts Review proposals), said : "I thank Lord Gill and the members of his project board, Lord McEwan, Sheriff Principal James Taylor and Sheriff Mhairi Stephen, together with all the members of the broader policy group and others who also participated in the review, either as individuals or as representatives of organisations. Their collective contributions have provided a landmark in the development of Scottish civil justice.”

Mr MacAskill continued : "I am pleased to announce the Scottish Government's commitment to taking forward the majority of Lord Gill's recommendations, which have been broadly welcomed by Scotland's legal community and by the Parliament. I am keen to maintain a broad consensus as we set about implementing the required changes. This will enable progress to be sustained across different sessions of the Parliament, as will be necessary with the timescales involved in fundamental change.”

Mr MacAskill’s foreword in the response goes onto state the changes Lord Gill recommends will need to take account of the current financial situation, although the Justice Secretary claimed radical steps must be taken to address waste & inefficiencies. Mr MacAskill wrote : “In taking forward the reforms, we will need to take full account of the pressure on public finances. This will significantly constrain investment in system improvements or transitional costs.” But if anything, this pressure makes reform more, not less necessary. We cannot accept that the waste and inefficiency identified by Lord Gill should be a permanent feature of the civil justice system, and must be prepared to take radical steps where necessary to address them.”

Scottish GovernmentScottish Government to ‘make justice work’ for Scotland. Mr MacAskill also said the reforms proposed by Lord Gill need to be seen in the context of the wider justice system – including criminal justice, Tribunals and other means of securing access to justice and to this end, the Minister stated the Scottish Government is to establish a major change programme, entitled “Making Justice Work”, which will co ordinate and oversee reforms across the system. Further recommendations on access to justice are due to be made by the Civil Justice Advisory Group, which has been established under the chairmanship of Lord Coulsfield and recently carried out a consultation I reported on, HERE.

Mr MacAskill concluded Lord Gill was right in his diagnosis and right in his prescription, and said it is now for the Scottish Government, the judiciary and the Scottish Court Service to ensure that this landmark report leads to the fair, just, accessible and efficient civil justice system that Scotland deserves. Lets hope these are not ‘famous last words’ on Scotland’s Victorian justice system.

Contained in the Scottish Government’s proposals are the creation of a third judicial tier, that of a new District Judge with restricted rights of onward appeal across the tiers and the handling of much court business conducted at a lower level than at present.

Court of Session Parliament HouseCourt of Session to lose business to Sheriff Courts. The Scottish Government agrees in principle that the sheriff courts could and should handle most of Scotland‘s lower value civil court business, and that the Court of Session should not handle business of low value unless this is justified by other factors, such as a wider legal significance. The Scottish Government went on to state it is therefore minded to accept the proposed limit of £150,000 for the new privative jurisdiction of the sheriff court, subject to further modelling work and that a specialised personal injury court be established as part of Edinburgh Sheriff Court.

The Scottish Government supports the recommended approach to better case handling, with case docketing, more reliance on active judicial case management and the further development of case flow management procedures in other types of action. The Scottish Government also agrees that new court rules should be developed with plainer language, providing appropriate consistency of practice across different courts.

Class ActionsClass Actions finally to be allowed in Scotland – Scots only had to wait nearly 30 years. Class Actions are also to be allowed in Scotland’s courts, the Scottish Government saying it supports in principle the recommendations that procedures for judicial review should be reformed and clarified, and that provision should be made for multi-party actions (Class Actions). I reported on the Scottish Government’s consideration of the Class Action issue, during August 2009, HERE. There will also be a review of costs & funding of litigation and the formation of a Civil Justice Council to take forward the implementation of the report and keep the civil justice system under review.

McKenzie Friends for ScotlandMcKenzie Friends proposal only made it in to present day court use due to Holyrood petition, court case & media scrutiny. Various issues already being progressed by the Scottish Government were mentioned, along with McKenzie Friends which were recommended by Lord Gill to be implemented in Scottish Courts. However most observers to the justice system see the McKenzie Friend issue as being pushed through on a more speedy note only due to the developments in one of Scotland's longest running Court of Session civil cases last year (M.Wilson v North Lanarkshire Council & Others (A1628/01) along with the enormous push McKenzie Friends received via a public petition at the Scottish Parliament – Petition 1247 (McKenzie Friends for Scotland), none of which is actually referred to in the Scottish Government’s response issued today.

The Scottish Government’s full response to Lord Gill’s Civil Courts Review can be viewed online here : Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review or can be downloaded directly, here : Scottish Government Civil Courts Review response (pdf)

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

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.

39 comments:

Anonymous said...

They are keeping you busy I see !

Good work - I'm sure the whole thing has only come about because Lord Gill has been solid all the way on his critique of the justice system and of course must mention your own doggedly determined coverage of all things legal.

Keep up the good work Peter !

Anonymous said...

Taking years to act on something they admit themselves is dragging down the justice system and people accessing it is a wee bit hard on the stomach.

You've had long enough Mr MacAskill - why not do it now ?

Anonymous said...

err the SNP only have until next May 2011 so how is it going to take them years to do it ?

Anonymous said...

MacAskill only indicates "most" of Lord Gill's proposals will be followed up.

Lord Gill said "a Victorian model that had survived by means of periodic piecemeal reforms" - it sounds to me after reading the govt's reply this is MacAskill doing more "periodic piecemeal reforms"
NOT MUCH OF AN IMPROVEMENT

Anonymous said...

The sheriff court rise is long overdue although how they will select and train these district judges is yet to be explained.I foresee a few problems there especially if like some of your readers,litigants will be engaged in financial disputes or claims against their solicitors.

Anonymous said...

Not bad,thought it would have been a lot less.You could say the Government haven't paid too much attention to the Law Society's well timed announcement of yesterday although the proof will be in the eating.

Anonymous said...

Solicitors could see a rise in business if more cases go do Sheriff Courts - the problem with this is you'd have to be confident of your solicitor having enough expertise for a case of say 150k to be decided by a sheriff,if its just a case of saving fees for an advocate or the extra costs of the court of session.

Anonymous said...

If more cases go to Sheriff courts I think you'd see a rise in advocates having to traipse around Scotland's regional courts.
They wont like it one bit.

Anonymous said...

Better late than never I suppose but I'd have to ask just how many years is it going to take them to reform it ?

Anonymous said...

So what your saying is not in the lifetime of this parliament ?
Pretty pathetic considering the amount of time the SCC and several other organisations devoted to civil justice reform.

Anonymous said...

I regularly read your blog so I know this Civil court review story almost off by heart now.
However isnt it a bit coincidental that since you started writing stories about it being over a year since Gill made his report and nothing has been done,the Law Society and then next day the Scottish Executive/Government make their intentions known ?

Big society at its best - gotta love it Pete !

Anonymous said...

last comment at 10.58 - about as coincidental as night follows day

Anonymous said...

Yet again a very detailed explanation on civil justice reform.Now all the govt needs to do is make sure this access to justice stuff goes further than the drawing board !
Keep up the good work !

Anonymous said...

I doubt anyone including even you could spin out this SNP Government's 'justice reforming' powers after they changed the law in 1 day so Scots could be locked up for 24 hours without being charged or having proper access to a lawyer.
You should really have written something about that Peter - 1 day to change a law,no public consultation and the end result is anyone can get locked up for 24 hours without recourse.

Anonymous said...

How many years is Lord Gill willing to allow them to ruin his report ?
Its plain to see now all they want to do is spread it out over time so everyone forgets and nothing happens.
Back to the usual piecemeal reforms then!

Anonymous said...

More cherry picking ?

Anonymous said...

Anonymous said...

I regularly read your blog so I know this Civil court review story almost off by heart now.
However isnt it a bit coincidental that since you started writing stories about it being over a year since Gill made his report and nothing has been done,the Law Society and then next day the Scottish Executive/Government make their intentions known ?

Big society at its best - gotta love it Pete !

11 November 2010 22:58

I noticed it too.Good one Peter!

Anonymous said...

Personally I think the advocates will want to charge more for appearing in sheriff courts if they have to move all around the country

Anonymous said...

Good to see the Scottish Govt taking a more active role.Now just make sure you keep tabs on it Peter so the Law Society dont slip anything through to gum up the works like that horrid McKenzie Friend register thing you wrote about the other day.

Anonymous said...

We need totally independent regulation and competition. They are protecting each other, so they can treat people like shit and get away with it.

Law Society & SLCC ideology will always ensure lawyers are protected. How can a profession so powerful and dangerous as Mr Mill's colleagues be allowed to self police? Lord Gill your colleagues and subordinates have too much power for the publics good. Campaigners such as Peter are human beings who need rights, and this must happen if the legal profession are to build a trusting relationship with clients. The fact is that lawyers are their own greatest enemy.

Anonymous said...

Ridiculous delays and I tend to agree they will use this time to make us all forget about Lord Gill's investigation.

Anonymous said...

sounds like Lord Gill's har work is going to waste

some timely words from himself would be much appreciated ?

Anonymous said...

Gill's review is news today forgotten tomorrow !

Anonymous said...

I think the judge needs to be more outspoken

Anonymous said...

We might be better going to the Supreme Court - they can make the Scottish parliament and judges shift IN A DAY !

Anonymous said...

12,000 Scottish lawyers can sue me, but I cannot sue one of them. A balanced legal system it is not. A closed shop form of legal abusers because they all operate in concert where a lawyers reputation is at risk.

You are right Peter it is about business not justice.

Good afternoon Lord Gill, independent regulation is the only way the public will have rights against lawyers. Self regulation amounts to the way Mr Mill dealt with complaints during his tenure at the Law Society of Scotland. It must end because without it lawyer corruption will continue.

Anonymous said...

Nice to see McAskill forced to eat his words, I hope he chokes on them.

Anonymous said...

Finally some sense from MacAskill however actions speak louder than words Mr Justice Secretary!

Anonymous said...

To be honest I wasnt even aware of the judge's work so I've downloaded it and off now to have a read

Peter Cherbi said...

Thank you all for your comments & emails on this article and issues related to Lord Gill's Civil Courts Review.

For those who have asked my opinion on the review itself, I of course believe Lord Gill did an excellent job in producing the Civil Courts Review, which is exactly what the Scottish justice system needed. I also believe the Lord Justice Clerk was correct to say his proposals should not be cherry picked. If the implementation of Lord Gill's proposals are interminably delayed, put off, or watered down, I hope Lord Gill and others in the judiciary will speak up for speedier reform, if it becomes necessary to do so.

On the issue of McKenzie Friends however, and my reporting of it within this article, this blog received a serious complaint last Thursday with regard to exactly how McKenzie Friends allegedly came about in Scotland.

It seems I did not give due credit to one individual who claims it was himself who brought about McKenzie Friends, an individual who was this year awarded a "Consumer Champion" prize. I beg to differ. The article is complete in its reporting and the facts stand as they are.

What surprised me is this individual who made the complaint, then went on to describe the media coverage surrounding McKenzie Friends as being not important to its eventual introduction. This individual then went on to claim a case, still ongoing in the Court of Session did nothing to contribute to the introduction of McKenzie Friends in Scotland.

I feel that I cannot support the arguments of someone who is allegedly a "consumer champion" who then effectively rubbishes the contribution of persons who have suffered and continue to encounter serious access to justice problems while this individual can apparently whistle up meetings with regulators, politicians & Scottish Ministers to badger them over the conduct of bodies who allegedly are not giving in to his demands. I note however, while the individual claimed such cases had nothing to do with the McKenzie Friends petition, I was badgered many times to submit information relating to the supposedly unimportant cases to the Parliament in support of the McKenzie Friend issue, which of course, I did.

As far as I am concerned, this article stands as it is.

I am not in the position to give out honours, medals or glorification to individuals just because a sole individual claims their work causes a shift in the legal system. Such an event is not possible. It never has been, it never will be. Change comes from teamwork, or as we have seen in Lord Gill's review, from people in positions whose experience and work is respected enough to be trusted to bring change, or from those whose struggle for justice eventually brings change on its own for the greater good of all, rather than the greater glory of one.

Anonymous said...

Oh dear - it sounds like you have your own monster clients to face.Now you know how it feels to be a solicitor faced with ridiculous or frivolous complaints about our work simply because we (or the law) do not agree or can provide no remedy to the client's position.

I take it from your own comment this complaint (comment or email?) can be traced back to the McKenzie Friends petition ?
If so your mind can rest easy.McKenzie Friends were being considered by Lord Gill and his team long before this petition came about although I would find it hard to argue the publicity brought to the issue did not speed it along to Lord Hamilton.

Anonymous said...

I'd advise you to buy the Scotsman today as there is a huge story in it about the SLCC which I cant find online.It seems to have you written all over it !

Anonymous said...

Where is this complaint ?
Can we see it ?

Anonymous said...

Which part of your post has the complaint about it ??

Anonymous said...

Sounds like you've upset someone.Who is it ?

Peter Cherbi said...

I will publish the complaint (which came in an email) in due course, along with a further article on McKenzie Friends.

Anonymous @ 15 November 2010 10:25

Thanks for letting me know.The article relating to the SLCC is actually online at the Scotsman website here : http://www.scotsman.com/news/We39ll-meet-the-new-challenges.6625504.jp

Anonymous said...

Oh well you partially answered my question.I'll say nothing more until I see the email even though I still cant see what there is to complain about.
Steer clear of those monster clients next time!

Anonymous said...

"Monster Client" love the term!

I've known a few who might fit the description,one who was found guilty of something he claimed he never did,came to my office and told me he had located one of the witnesses who identified him and "was going to break his legs".I withdrew from acting for him and he put in a complaint to the Law Society!

Anonymous said...

There is obviously a lot to know about this. I think you made some good points in Features also. Keep working ,great job!.