Lawyers can talk, yet fee paying clients & court users remain shut out of Scottish Government review of the costs & funding of litigation in Scotland

Scots public have not yet been asked to give opinions on Scottish Govt. costs of justice review. THE continuing theme of inequality in how the legal profession are treated differently to consumers, fee paying clients & court users of Scotland’s Justice system has reared its head once again as questions surfaced today over why the actual people who pay for Scotland’s costly courts system, those being taxpayers, consumers, and obviously, real life court users such as party litigants & fee-paying clients of solicitors have so-far been excluded from a call for contributions to the Scottish Government’s Review of Expenses and Funding of Civil Litigation In Scotland.

While members of the public and actual court users have yet to be asked to input into Sheriff Taylor’s review of the Lord Justice Clerk, Lord Gill’s Civil Courts Review recommendations on lowering the long time extortionate cost of access to Scotland’s civil courts, it transpires the legal profession were invited to give their own input & opinions to Sheriff Taylor’s team some three weeks ago when the legal profession’s own internal media asked for Scotland’s solicitors to give their contributions to the Taylor review team directly.

A legal insider who brought the matter to the attention of Diary of Injustice earlier this week claimed the Law Society of Scotland were keen to encourage as many solicitors as possible to submit contributions with a theme highlighting the invaluable work of solicitors in the legal system on which it is to be claimed, the Scots public must depend on for professional legal services and thus, access to justice.

The insider said : “I understand the Law Society is keen to refute the notion that access to justice in Scotland is unnecessarily expensive and out of reach for most consumers.”

Documents & discussions made available to Diary of Injustice portray a legal profession willing to ‘talk down’ many of Lord Gill’s criticisms of the costs of litigation in Scotland’s civil courts, out of what appears to be lawyers main fears of losing fee-paying clients & huge profits. There appears to be little attempt on the part of the legal profession to address key concerns expressed by many that access to justice in Scotland is in reality only available to those with money, and is mainly something of a rip-off to anyone who manages to walk through the doors of a court.

Discussions also reveal senior lawyers appear to be engaged in attempts to discourage any wider assistance or encouragement for members of the public to literally take justice into their own hands by using or even becoming McKenzie Friends, an idea first recommended by Lord Gill in his Civil Courts Review and subsequently introduced to Scots case law in November 2009 after a ruling by Lord Woolman in what is Scotland’s longest running civil damages claim : M.Wilson v North Lanarkshire Council & Others (A1628/01).

Questions were put to the Scottish Government earlier this week and today about the lack of any invitation as-yet to consumers & actual court users to participate in Sheriff Taylor’s review. No response was received. The Taylor review team also failed to respond to enquiries.

Sheriff Taylor’s review team asked the legal profession for their thoughts & contributions nearly three weeks ago. The invitation to the legal profession, published 20 June 2011, stated : “One of the basic premises of the Review is that any recommendation should address an identifiable mischief in Scotland’s expenses and funding regime. To that end, the Review welcomes contributions from members of the profession as to where they consider change is required. Comments may then be invited on such suggestions in the consultation paper.”

“Contributions to the Review should be sent to Kay McCorquodale, Secretary to the Review, at Area 3 G South, Victoria Quay, Edinburgh EH6 6QQ or, if by email, to enquiries@taylorreview.org  Please advise if your response should be treated as confidential.”

While a consultation paper is intended to be published around August of this year, the Taylor review team have not yet invited members of the public or court users to give their thoughts on the costs & funding of litigation in Scotland for the proposed consultation paper.

To ensure an adequate consultation paper is produced, and to ensure the review team are able to hear from actual court users and those of us who end up paying huge amounts of money for legal services in Scotland, I would encourage those of you who have used our expensive Scottish “Victorian” justice system, to study the terms of the review, prepare a submission, and contact the Taylor review team by email, documenting your relevant experiences in the justice system, whether good or bad. I would also encourage any of those who wish to participate in the Taylor review, to also contact their MSP and ask them to submit their thoughts on the extortionate costs of accessing justice in Scotland.

More information on the Taylor Review can be found on the Scottish Government’s website, here : Review of Expenses and Funding of Civil Litigation In Scotland

In order to assist in formulating recommendations Sheriff Principal Taylor has appointed a Reference Group. The Group will meet from time to time, as and when required. Sheriff Principal Taylor alone will be responsible for the conduct and conclusions of the review. The Reference Group, as currently constituted, consists of the following members :

Ian Johnston, Claims Manager (Technical), Aviva Insurance (one of the insurance firms who are part of the Law Society of Scotland’s notoriously corrupt Master Policy), Paul Wade (Solicitor), Wendy Sheehan (Solicitor), Joyce Cullen (Solicitor), Ronnie Conway (Solicitor), Lindsay Montgomery (Chief Executive, Scottish Legal Aid Board), Andrew Smith QC (Faculty of Advocates), Shona Haldane QC (Faculty of Advocates), Paul Brown (Chief Executive, Legal Services Agency), Professor Alan Paterson (Strathclyde University, also currently sits on Scottish Legal Complaints Commission), Professor John Sawkins (Heriot-Watt University) Sarah O'Neill (Consumer Focus Scotland), Stewart Mullen (Law Accountant)

I initially reported on the Scottish Government’s announcement of Sheriff Taylor’s review in an earlier article in March of this year, here : Scottish Government delay reforms on costs of litigation & access to justice as Minister announces 18 month 'time wasting' review by retired sheriff

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.”

The terms of reference for the EIGHTEEN MONTH LONG 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.

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 of Civil Courts Review

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