Justice Secretary Kenny MacAskill's woefully limited survey may undermine civil justice reform proposals. SCOTLAND'S Justice Secretary Kenny MacAskill is today facing allegations of covering up litigation difficulties & failures in the Civil Courts as a taxpayer funded survey carried out by Ipsos-MORI on behalf of Consumer Focus Scotland and the Scottish Legal Aid Board is today revealed to have targeted only THIRTY FIVE PEOPLE from the thousands of litigants who each year use the Scottish Courts system for civil litigation.
Scottish Legal Aid Board & Consumer Focus sponsored the ‘limited’ research. The survey, titled "Consumer views and experiences of using the civil courts in Scotland" was to be intended to support the forthcoming release of the Lord Justice Clerk Lord Gill's review of Scotland's Civil Justice system, including his recommendations for reforms, which are rumoured to be ‘groundbreaking’ and will also include recommendations to allow Scots to use the facility of McKenzie Friends (used successfully in England & Wales for 39 years) to assist civil litigation cases where legal representation cannot be secured for a number of reasons.
A spokesman for the Scottish Legal Aid Board gave some background to the survey : "There is very little information currently available in relation to the actual experiences of litigants as they move through the court processes. The press release which accompanied the consultation paper to the Civil Court Review picked up this point :
‘We are especially interested in hearing from members of the public about their experiences of the civil court system. In this way we can ensure that their voice is heard and that their interests are central to any recommendations for reform that we make’.
In response to the weak evidence base and this statement, the Scottish Legal Aid Board (the Board) and Consumer Focus Scotland agreed to jointly commission research that would help us better understand the nature and drivers of civil litigants’ views and experiences of Sheriff Courts. The research describes the experiences and views of people coming before Sheriff Courts in Scotland for civil matters. It identifies and explores the factors associated with these experiences and levels of satisfaction.
A Research Advisory Group was established to help steer this work and to ensure the methods and approach were appropriate. The Board, Consumer Focus Scotland, Scottish Government, the Scottish Court Service and members of the Civil Courts Review Policy Group were members of the advisory group.
At the initials stages of the research we had hoped to deliver a relatively large scale quantitative survey of court users. However we were unable to access the court records that would be needed to deliver such a representative survey.
A second option was therefore subsequently developed. This involved contacting and securing the support of In Court Advice services to gain access to their service users. In addition to in court advice clients, we also contacted people who received legal aid for their sheriff court case. This allowed us to gather views from people who had representation for their case.
The research is qualitative in nature, an appropriate way of exploring views and experiences. Thirty five interviews were conducted with a range of civil litigants. Litigants had been involved in a variety of case types, including small claims actions, debt, housing/eviction actions and mortgage repossession proceedings.
The sample did not include other court users such as witnesses or jurors in civil cases. The sample included both defenders and pursuers. It included not only those whose case was actually heard in court, but those who were involved in civil legal proceedings at other stages. The interviews covered a range of issues, from access to legal advice and representation through to expectations and experience of going to court e.g. specific concerns; how people felt about the experience and the communication they had with the court.
The scope of this research must be stressed. The research is qualitative in nature therefore it does not measure the incidence of or how representative views and opinions are. It does however provide valuable provide insight into views and experiences, which we hope will be built upon in the future as evidence in this area grows.
We were unable to talk with people who were unrepresented and did not use an In Court Advice service. We are aware that this group may be even more likely to report some of the problems highlighted in the research and or may possibly report different experiences and views of the court process.”
Lord Justice Clerk Lord Gill looks set to give some harsh criticisms of Scotland’s Civil justice system. On hearing of the difficulties with the Scottish Government inspired survey, sources from both the legal profession and public campaign groups claimed the survey of Civil Courts users was not advertised enough throughout the Courts system for members of the public to participate, and may have had an unfair restricted remit due to the fact the Scottish Government fear extensive negative views from the general public on their inability to use the civil justice system or even secure the necessary legal representation to access the courts – the latter being a topic of constant debate for many years in Scotland, amid many proposals by the Scottish Law Commission and surveys the former Scottish Consumer Council requesting civil law reform.
I have written about Lord Gill’s criticisms of Scotland’s Civil justice system in an earlier report here : Lord Gill : 'Victorian' justice system fails public as soaring injustice & poor legal services undermine credibility of Scots law.
You can read more about Lord Gill’s Civil Justice review here : Lord Gill's Civil Courts Review
A legal source this morning said "For a survey which is supposed to back up Lord Gill's review of the civil justice system, it looks more like the Government has attempted to railroad the Lord Justice Clerk's findings before they are published, giving themselves reasons not to undertake the necessary reforms to be recommended, which we know ourselves as solicitors, must be implemented if the issues of lack of public access to justice are to be tackled properly."
A source from a consumer group called the survey “A political stunt which will hopefully backfire on the Justice Secretary due to the limited numbers of individuals approached for evidence on such an important issue.”
A client with an ongoing civil case who has experienced "incredible difficulty over a number of years with his litigation due to the dismal state of the civil justice system said : "I have some questions for the Research Advisory Group. Why did they not publicize this much more widely if they were concerned to obtain litigants views, particularly careless of them when they claim there is an already existing 'weak evidence base'. Thirty five interviews is a damning indictment when complaints about the legal profession run into the thousands annually.”
Further questions were raised over the incredibly limited remit of the survey and apparent unwillingness of even the Scottish Court Service to divulge court records : "Who refused them access to Court Records and why? - past published case law is readily available on the internet. What is the point of research which does 'not measure the incidence of or how representative views and opinions are' ? Why were they 'unable' to talk to people who were unrepresented ? “
An official from IPSOS MORI speaking in response to inquiries made on the little known research said : "The scope of the research was fairly limited, and this is acknowledged in our report. We spoke to a very small sample of litigants who had contacted an in-court advice service and a sample of litigants identified through Scottish Legal Aid Board applications data was also provided to us."
The Justice Secretary could not be contacted today for comment on the revelations.
So. Can a survey of 35 people from the thousands of Scots who have to use the Courts system for litigation, defence of their legal affairs & interests, and pursuit of justice, be a fair indication of the problems which many individuals encounter when they try to take a case to court, especially if the issues involve going up against notoriously corrupt professions or cases where access to justice is routinely denied ?
I think not, and I do hope Lord Gill is taking note of these goings-on, and makes appropriate comment when the time comes ….