Court Transcripts in Scotland : Prohibitive costs & profits are hindering Scots access to justice say litigants, lawyers & consumer groups

Lord Gill’s two year investigation of Scotland’s ‘Victorian’ Civil Justice system recommended major legal reforms. NEARLY two years on from a speech to a Law Society of Scotland conference in which the Lord Justice Clerk, Lord Gill branded Scotland’s civil justice system as “Victorian”, having structures and procedures of a century and a half ago & failing society and litigants, calls to act now & implement Lord Gill’s Civil Courts Review recommendations to digitally record evidence in all court cases are being made by consumers & legal insiders after several litigants, a solicitor and a consumer group agreed that the huge costs of court transcripts and the complicated, sometimes awkward procedures needed to go through to obtain them are effectively blocking Scots access to justice.

The Scottish Court Service were asked for information on how users could obtain copies of court transcripts. A Scottish Court Service (SCS) spokesperson said: "There is no published list of costs for court transcriptions. In many instances transcriptions are requested by the court and the costs are met by the SCS. Costs will vary according to the length and complexity of each transcription. There are also instances when an individual may seek a transcription. The procedure to follow in criminal cases is provided by statute in section 94 of the Criminal Procedure (Scotland) Act 1995. In these instances the applicant is liable for payment of the transcription costs and an estimate of that charge will be provided before hand. Currently, the standard rate for the transcription of one hour of court proceedings is £126."

Curiously, while Scots litigants appear to be having a harder time obtaining what are generally expensive transcripts of court hearings, which leading Scots QC Donald Findlay once described as “Bloody Awful” in terms of their quality in a Scotsman newspaper article, and which have been condemned in other circles as being incomplete, inconsistent and even omitting key evidence or rulings, court users in England & Wales apparently have an easier set of well publicised online procedures to follow for obtaining the same kinds of transcripts of court proceedings.

Not in Scotland : Court users in England & Wales can download a form (pictured) with costs & guidance on how to apply for court transcripts. While the Scottish Court Service currently do not publish costs for court transcriptions, court users in England & Wales need only visit the HMCS website to find the necessary forms and guidance on how to apply for court transcripts. These forms, which are of little use to Scots court users although readers may wish to download them to compare the services offered in the English courts to those of Scotland, can be found at the following links : EX107 Info (Guidance, transcription panel list and prices) & EX107 Tape Transcription Request

While most people generally assume recordings or transcripts of courtroom testimony are easy to come by, applying to the court for these highly prized verbatim accounts of courtroom activity is a far from clear exercise in Scotland, a fact confirmed by a litigant who spoke to Diary of Injustice yesterday, who produced letters confirming his legal team had informed him they were facing problems in acquiring transcripts of court proceedings in a long running action, where claims & counter claims disputing the accuracy of testimony & court interlocutors have arisen in an action which connects back to the legal profession itself.

In this digital age, it appears goings-on in the courts, particularly the Scottish courts have been left far behind in terms of the ability of the courts system to accurately and perhaps as importantly, within a sensible cost, record and make available access to transcripts to litigants, whether they be represented or unrepresented, a matter which was investigated by Scotland’s Lord Justice Clerk, Lord Gill during his two year study of the civil justice system.

Lord Gill recommended significant upgrades to the information technology although with the pace of change & reform in the Scots justice system being itself, “Victorian” it will come as no surprise Lord Gill’s recommendations have as yet, not been acted upon.

Lord Gill noted in Chapter 6 of his Civil Courts Review : “Currently where evidence is recorded in civil cases this is done manually by a shorthand writer. In our view it would be more efficient to record digitally all evidence in civil cases, as happens in criminal cases. The cost of this should be borne by the SCS. The availability of digital recording facilities in all courtrooms would contribute to more flexible usage of accommodation. We understand, however, that to equip a court fully for digital recording could cost up to £15,000. That may be prohibitive in smaller courts. Mobile facilities could be made available in those courts when required. If parties required a transcript of the evidence a charge would be made for this service. In many instances a recording of the evidence would be all that would be required.”

Lord Gill later concluded in his recommendations on the increased use of information technology, specifically on the recording of evidence that “All evidence in civil cases, apart from those under the simplified procedure should be recorded digitally.”

A party litigant who recently approached Diary of Injustice over the matter of the huge costs of court transcripts revealed he is facing a staggering bill for nearly nine thousand pounds to obtain transcripts of court hearings, a bill he cannot afford to pay. The litigant is not wealthy, has not been able to obtain legal representation, and does not have access to legal aid funding.

After studying the litigant’s case and letters exchanged with the pursuers, which appear to detail several differing views on what transpired in court, it does appear the litigant’s access to justice is being obstructed by the exorbitant costs of obtaining courtroom transcripts, where a cheap digital recorder purchased for a few pounds and used under supervision of the court, would have provided the litigant a verbatim record of actual events in court to assist the progress of his case. In my view, the litigant’s access to justice has been denied by the costs of the transcripts.

Another court user who has also encountered difficulties in obtaining transcripts commented : “One thing is certain, digital recording is ubiquitous and software transferring cassette recordings and converting these simultaneously into digital files has long been available. Simply put there should be no need for any cost to parties, far less denying them access to recordings of evidence in their own case.”

A solicitor who spoke to Diary of Injustice on the issue said he was aware of Lord Gill’s recommendations to digitally record all proceedings & evidence in civil cases. However he feared the judge’s recommendations would take ‘some time’ to be implemented or arrangements put in place where litigants could request a copy ‘without having to pay through the nose’ due to a general reluctance by the courts system to embrace new technology.

He said : “Lord Gill is certainly on the right track with his review, however the technology to digitally record for lengthy periods without causing undue fuss or diversion to the court process is now available to all at a considerably reduced cost than the services provided by those who transcribe the current system of recordings used in Scottish courts. With regard to civil actions such as damages claims, small claims etc, I personally believe party litigants should be able to take their own digital recorder into court and use it, depending of course on the circumstances & nature of the case.”

An official with one of Scotland’s consumer organisations speaking on the matter said he was aware of the difficulties & costs incurred by court users who sought copies of courtroom transcripts.

He said : “The current system of providing transcripts of court proceedings in Scotland to party litigants is unclear, complicated & costly to the point of discouragement. Such a set of circumstances has a negative impact on consumers access to justice. There must be a fairer & cheaper way of making transcripts available in cases especially where party litigants who are unrepresented in court because they cannot afford legal representation have a genuine need to obtain them. I would therefore urge the Scottish Government to deliver on Lord Gill’s recommendations in this area.”

BACKGROUND

The Lord Justice Clerk, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference last year, reproduced in full here said : “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."

Readers can find out more & download a copy of 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)

My coverage of the Civil Courts Review from its publication to the present, and the pace of reforms to civil justice in Scotland can be found here : Civil Courts Review - The story so far.