Scottish Government delay reforms on costs of litigation & access to justice as Minister announces 18 month 'time wasting' review by retired sheriff

Scottish Govt. Minister Fergus Ewing announces 18 month review of costs of litigation & justice in Scotland. THE SNP minority Scottish Government today stand accused of obstructing Scots access to justice by intentionally delaying reforms to the infamously staggeringly high costs of using Scotland’s justice system, after it was announced on Friday that a review of the costs & funding of litigation in Scotland, an area of major concern highlighted by Scottish judge Lord Gill in his 2009 Civil Courts Review, will finally take place ‘sometime after April 2011’, some two years after the Lord Justice Clerk severely criticised much of Scotland’s civil justice system which he himself branded “Victorian”.

However, those hoping for the Scottish Government to introduce speedy reforms as recommended in the Civil Courts Review to reduce the extortionate costs of getting to court or using any legal services in Scotland will be in for an even greater shock, as the review itself is to take a staggering e-i-g-h-t-e-e-n months to complete.

The announcement from the Scottish Government, made by the Minister for Community Safety, Mr Ewing, stated : “A review of the costs and funding of litigation in Scotland will be undertaken by Sheriff Principal James Taylor. This review was recommended by the Lord Justice Clerk, Lord Gill in his report of the Review of the Scottish Civil Courts. Sheriff Principal Taylor will begin the review when he retires from the bench in April. It is anticipated that the review will take around 18 months and the final report will be sent to the Scottish Ministers for consideration of further action, on completion.”

Mr Ewing, making an announcement one might normally expect from the Justice Secretary, said : "It is this Government's desire to make Scotland a forum of choice for litigation and to ensure Access to Justice for all Scotland's population. This review will better inform the costs of litigation, the barriers which prevent access to the courts for some and consider what alternative options there may in the context of the Scottish Civil Courts Review conducted by Lord Gill."

The terms of reference for the review announced by the Scottish Government are :

To review the costs and funding of civil litigation in the Court of Session and Sheriff Court in the context of the recommendations of the Scottish Civil Courts Review, and the response of the Scottish Government to that review. In undertaking this review, to:

* consult widely, gather evidence, compare our expenses regime with those of other jurisdictions and have regard to research and previous enquiries into costs and funding, including the Civil Litigation Costs Review of Lord Justice Jackson

* consider issues in relation to the affordability of litigation; the recoverability and assessment of expenses; and different models of funding litigation (including contingency, speculative and conditional fees, before and after the event insurance, referral fees and claims management)

* consider the extent to which alternatives to public funding may secure appropriate access to justice, and pay particular attention to the potential impact of any recommendations on publically funded legal assistance

* have regard to the principles of civil justice outlined in Chapter 1, paragraph 5 of the Civil Courts Review

* consider other factors and reasons why parties may not litigate in Scotland

* report with recommendations to Scottish Ministers, together with supporting evidence within 18 months of the work commencing

However, according to Scottish Government inside sources speaking to Diary of Injustice yesterday, the review when finally completed may have little or no impact or bring any real reductions in court costs because by the time its conclusions are handed over to Scottish Ministers by the end of 2012 at the earliest, possibly taking until 2013, inflation, higher legal fees, dwindling personal wealth & reductions in legal aid availability will combine with a whopping four or even five years on since Lord Gill made his initial recommendations in 2009 to put an end to any consumer hopes of lower costs of using Scotland’s “Victorian” justice system.

A court user & experienced party litigant commenting on the Scottish Government’s latest proposals branded the review as little more than a delaying tactic.

He said : "The latest proposal is just another example of the wilful delay which has previously been used by vested interests when defending the status quo.”

He continued : “First we had to wait many years for Lord Gill's Civil Court's Review, which is now 18 months old, now we have to wait for the Sheriff Principal to retire followed by a further 18 months for his review to be completed. No doubt this will be followed by yet further delay from Parliament, and all to investigate failings long since identified by the Scottish Public and a number of consumer organisations.”

“Given this record of procrastination some might credibly maintain that there is no sincere desire within the Legal and political communities to remedy the conspicuous defects of the Civil Justice System in Scotland, the powers that be preferring instead to engage in numerous 'window dressing' exercises.”

A consumer official who spoke to Diary of Injustice described the Scottish Government’s eighteen month review proposals as “an exercise in time wasting”. He also criticised the terms of the review, claiming it would not answer the root causes of high costs within the justice system or recommend effective solutions to the affordability of access to justice in Scotland.

He said “Everyone is well aware the costs of using the courts in Scotland are far too high. However, I really don't think Lord Gill had it in mind he would write his conclusions only to find after four years nothing would be done to remedy the financial burdens placed on those consumers seeking access to legal services in Scotland.

He continued : “People may well begin to believe, with good cause that the Scottish Government’s 18 month review of litigation costs is little more than an attempt to appease the legal establishment amid their concerns Lord Gill’s Civil Courts Review overreached itself and was overly critical of many lucrative areas of business in the courts. Personally, I have little faith in Mr Ewing’s review.”

Clearly there is no appetite in this Scottish Government for providing access to justice for ordinary Scots, who through bitter experiences of using the justice system are finding more often than not that access to justice is more like access to extortion. Perhaps Lord Gill may be well advised to speak out once again on the progress of civil justice reform.

BACKGROUND TO CIVIL JUSTICE REFORM IN SCOTLAND

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."

Against the background of Lord Gill’s criticisms of Scotland’s “Victorian” civil justice system, in which some cases continue to be heard by judges some fifteen years after they first entered the court system, the current Scottish Government have a poor track record of responding to the many recommendations contained in Lord Gill’s 2009 Civil Courts Review, as I have previously reported, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests & here : Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’.

Sadly, many of the Scottish Parliament’s msps failed to push the SNP administration to address much of the 100 year plus malaise of Scotland’s civil courts system. Only a handful of Scottish politicians rose to the occasion to challenge the Scottish Government over Lord Gill’s recommendations. Video footage of those Holyrood debates on civil justice reform & Lord Gill’s Civil Courts Review can be viewed at LawyerTV.

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.