‘Part-time’ law regulator Scottish Legal Complaints Commission refuse to monitor consumer claims against lawyers ‘Master Policy’ insurance scheme

The Scottish Legal Complaints Commission have refused to monitor claims against crooked lawyers. THE Scottish Legal Complaints Commission which has received over £2 million of public funds & many more millions from lawyers, and which was triumphed by both the Scottish Government & Scottish Parliament as an ‘independent’ regulator of complaints against the legal profession has today reneged on substantial parts of its legislative remit to ‘monitor’ claims made against the Law Society of Scotland’s Master Policy – the infamous insurance scheme which clients who attempt to recover financial losses through negligent or ‘crooked lawyers’ are forced to deal with, if they can find legal representation to take their case to court.

It can now be revealed the SLCC has refused the first ever invitation to monitor two claims made by an individual who contends negligence & more on the part of his legal representatives. The SLCC however went further in its response to the client’s request, and claimed it would not monitor any claims made against the Master Policy, despite the powers given to it under Section 39 of the Legal Profession & Legal Aid (Scotland) Act 2007.

Letter reveals SLCC’s latest Chief Executive told client they will not monitor claims made against crooked lawyers while revealing quango boss is part-time only at £35K a year. In a letter released today to Diary of Injustice, the SLCC’s latest Chief Executive, Rosemary Agnew apologised for taking a month to reply to the claimant, as the SLCC’s Chairwoman, Jane Irvine who receives over £35,000 a year “only attends the office on a part-time basis”. Ms Agnew then went onto write : “..it is not within the SLCC’s remit to monitor individual claims made under the Master Policy. Under the Legal Profession & Legal Aid (Scotland) Act 2007 (Section 39), the SLCC may monitor the overall effectiveness of guarantee funds, etc and professional indemnity arrangements put in place by the Law Society of Scotland for its members (ie the Master Policy). This power does not extend to our active involvement in the way in which individual indemnity claims are being dealt with by the insurers.”

Ms Agnew, the SLCC’s second Chief Executive, who replaced Eileen Masterman who herself resigned after a bitter exchange with Cabinet Secretary for Finance John Swinney over issues involving meetings the SLCC held in connection with the Master Policy, went onto question why the claimant was even writing to the SLCC with regard to monitoring Master Policy claims, even disputing the claimant’s capacity to invite the SLCC to carry out its monitoring role. I reported on Ms Masterman’s resignation, here : SLCC’s Eileen Masterman resigns, questions remain on attempt to mislead Cabinet Finance Chief John Swinney over secret meetings with insurers Marsh

Ex Law Society Chief Executive Douglas Mill, resigned after memo revealed he interfered in Master Policy claims. Legal insiders today questioned the Scottish Legal Complaints Commission’s refusal to monitor individual claims made against crooked lawyers to the Master Policy, saying it had been expected for some time the SLCC would involve itself in monitoring work to specific claims, as several MSPs, including John Swinney when he was in opposition, had hoped for and was intended in the spirit of the LPLA Act, which had a bitter passage through the Scottish Parliament during 2006, even provoking legal threats against both the Parliament & Scottish Government by the then Law Society Chief Executive, Douglas Mill, himself brought down by questions over his involvement in blocking claims against the Master Policy.

A consumer official also criticised the SLCC’s refusal to keep watch on claims made against the Master Policy and rounded on their refusal to look at individual claims. He said : “If the SLCC do not take up their monitoring role on claims made to the Master Policy in a fashion which allows them to keep an eye over individual claims, I have to wonder how the commission expects to gain any experience from how claims to the Master Policy progress once they have been made.”

Section 39 of the Legal Profession & Legal Aid (Scotland) Act 2007 Legal Profession & Legal Aid (Scotland) Act 2007 states :

39. Monitoring effectiveness of guarantee funds etc

(1) The Commission may monitor the effectiveness of—

(a) the Scottish Solicitors Guarantee Fund vested in the Society and controlled and managed by the Council under section 43(1) of the 1980 Act (“the Guarantee Fund”);

(b) arrangements carried into effect by the Society under section 44(2) of that Act (“the professional indemnity arrangements”);

(c) any funds or arrangements maintained by any relevant professional organisation which are for purposes analogous to those of the Guarantee Fund or the professional indemnity arrangements as respects its members.

(2) The Commission may make recommendations to the relevant professional organisation concerned about the effectiveness (including improvement) of the Guarantee Fund, the professional indemnity arrangements or any such funds or arrangements as are referred to in subsection (1)(c).

(3) The Commission may request from the relevant professional organisation such information as the Commission considers relevant to its functions under subsections (1) and (2).

(4) Where a relevant professional organisation fails to provide information requested under subsection (3), it must give reasons to the Commission in respect of that failure.

Exactly how far along the Scottish Legal Complaints Commission actually is with its monitoring role of claims against crooked lawyers after three years of discussing the issue was revealed in an article of last week, here : 15 court challenges, huge expense claims, lack of consumer confidence & no Master Policy scrutiny after two years tells all on Scots law quango SLCC

SLCC’s Master Policy report revealed client deaths were covered up by Law Society & insurers. Clearly the word “may”, which is liberally inserted into the terms of the LPLA Act is playing a vital part in the SLCC’s lack of interest in monitoring claims against the Master Policy, a remit which is still in discussion three years since the Commission was created. Additionally, the 2009 independent investigation into the Master Policy, compiled by the University of Manchester’s law school, which I reported on report on the, here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night' appears to have had little effect on the road to taking the Master Policy issue since the law complaints quango was created in a blaze of publicity to restore public confidence in the handling of complaints against Scottish solicitors and to keep an eye on how clients are compensated for the actions of ‘crooked lawyers’.

SLCC’s Chairwoman Jane Irvine who couldn’t answer letter sooner due to part-time position. While wronged & robbed clients have been left in the lurch by the SLCC’s refusal to monitor claims made to the Master Policy, its ‘part-time’ Chairwoman, Jane Irvine who receives over £35,000 a year in her post at the SLCC is revealed in the SLCC’s register of interests to have a string of jobs including that of Chair of the Disciplinary Board of the Faculty and Institute of Actuaries, and the position of Deputy UK Pensions Ombudsman, for which Ms Irvine receives a further £30,000 per annum with expenses claimed of £3883.70 up to August 2010, according to a response received in relation to a Freedom of Information request.

The Faculty of Actuaries are exempt from Freedom of Information legislation and would not reply to enquiries as to how much Ms Irvine earned in her position as Chair of the Disciplinary Board of the Faculty and Institute of Actuaries.

The SLCC’s register of interests also reveals Ms Irvine is a Director of a company called “Daleway Ltd” and a 2006 report in the Law Society of Scotland's in house magazine, the Journalonline stated Ms Irvine was a director of “Resolutions Ltd” “which provides decisions and mediation services for disputes in a range of areas including holidays, funerals, surveying and financial services. She is also the chairman of the Scottish Branch of the Chartered Institute of Arbitrators.”.

The Journalonline article of 2006 went onto state : “She sits on disciplinary boards for the Royal Institution of Chartered Surveyors, the Institute of Chartered Accountants of Scotland, the Institute of Actuaries and the Faculty of Advocates. She has also served on the Local Government Property Commission in Scotland where she dealt with disputes over property ownership between local authorities.”

Many other SLCC board members hold multiple jobs & paid positions, as is revealed in their register of interests which will be featured in a further report next week, where it appears the board members have so many other positions, they don't appear to be able to focus on the SLCC’s expected remit to be a vigorous defender of maligned clients at the hands of many a crooked lawyer …

It is certainly a sorry state for consumers of legal services in Scotland that over a year on since the SLCC’s own report tied up the Master Policy to deaths, the SLCC is still bogged down in discussing what it should be doing with regard to its ‘monitoring role’ over the Master Policy & Guarantee Fund.

The Scottish Legal Complaints Commission issued a less than convincing statement this afternoon on the matter of their monitoring role over the Master Policy, saying : “We understand that under the Act, the SLCC’s powers do not extend to the monitoring of individual cases.”

Clearly if the Scottish Legal Complaints Commission is not up to the job of monitoring the most controversial parts of regulation of complaints & claims against the legal profession, the public need a regulator who can do, not one that cant do, or wont do …

Petitions calling for review of Scottish Public Services Ombudsman over complaints remit sent to Holyrood’s Local Government Committee

Holyrood’s Local Government and Communities Committee to receive multiple petitions involving complaints about SPSO. EIGHT PETITIONS calling on the Scottish Parliament to urge the Scottish Government to commission an independent review of the Scottish Public Services Ombudsman to make it more accountable which were heard earlier this week by Holyroods Public Petitions Committee, and featured a second attendance by Housing & Communities Minister Alex Neil in support of the petitioners, are now to be referred to the Scottish Parliament’s Local Government & Communities Committee.

The petitions, Petition PE1342, Petition PE1343, Petition PE1344, Petition PE1345, Petition PE1346, Petition PE1347, Petition PE1348, & Petition PE1349 all “call on the Scottish Parliament to urge the Scottish Government to commission an independent review of the SPSO to make it more accountable for its performance, including the extent to which its investigations are fair and robust, and to widen its remit, so that it can enforce recommendations that it makes following investigations of the actions of public bodies.”

I reported on the initial hearing of the multiple petitions calling for a review of the SPSO in coverage during September, here : Holyrood considers nine petitions against Scottish Public Services Ombudsman as Housing Minister dubbed ‘out of touch’ over accusations

Holyrood’s Petitions Committee referred SPSO petitions to Local Government & Communities Committee (Click images below to view video)

Since the initial hearing of the petitions during September, the Scottish Government, the Scottish Parliament’s Corporate Body & the Scottish Public Services Ombudsman himself, Mr Jim Martin have filed written responses to all of the petitions, available to download here : PE1342/A: Scottish Public Services Ombudsman letter of 1 October 2010 (23KB pdf), here : PE1342/B: Scottish Government letter of 5 October 2010 (31KB pdf) & here : PE1342/C: Scottish Parliamentary Corporate Body letter of 8 October 2010 (144KB pdf)

Jim Martin, the Scottish Public Services Ombudsman said : “It is for the Parliament to determine to whom and how the SPSO should be accountable for its performance. In my 2009-10 annual report, I invite the Parliament to consider ways of strengthening the SPSO’s relationship with, and the accountability of the office to, the Parliament.”

Mr Martin went onto say : “I welcome external scrutiny. This office has adopted many non-statutory measures to ensure greater accountability for our performance.”

In commenting directly on the petitions before the Parliament, Mr Martin went onto say : “So it is to the handful of cases where a body refuses to comply that the petitioners’ question is addressed. My strategy to date has been to contact the relevant Chief Executive and bring about a conclusion I am satisfied with by the art of persuasion or the threat of publicity. In any case where this has not brought about the desired outcome, my option is to use the ‘special report’ mechanism in the SPSO Act. This allows me to ask the Parliament to take steps to enforce a recommendation. Since the SPSO was set up in 2002, we have not laid such a report, but I am now close to doing so.”

Concluding his letter to the Petitions Committee, Mr Martin said : “In conclusion, it is my strong view that commitment from the top and culture change, rather than technical legal compliance, are the real lever here. A very few bodies can be reluctant to admit fault and enforcement will not necessarily change their view – it might make them tick the boxes, but will not bring about the wider aim of encouraging bodies to learn from their mistakes and to see complaints as valuable tools to drive improvement. I believe that the work that my office is doing to lead the development of standardised complaints handling processes and to establish principles of good complaints handling (which we will bring to the Parliament for approval later this year) will go some way to bringing about the desired culture change.”

The response from the Scottish Government to the petitions claimed public bodies within the jurisdiction of the SPSO would be less than willing to work with the SPSO if enforcement powers were given to Mr Martin’s Office.

The letter from Scottish Government stated : “Having taken evidence from stakeholders, including Government and the SPSO, in 2009 the RSSB (Review of the Scottish Parliamentary Corporate Body) Committee concluded that it would be more appropriate for Government to legislate for improved complaints handling. The Scottish Government agreed the approach proposed by RSSB Committee in November2009 and the recommended provisions were proposed as amendments at Stage 2 of the Public Services Reform (Scotland) Bill. The Bill was passed by the Scottish Parliament on 25March 2010 and the Act received Royal Assent on 28 April 2010.”

“To give the SPSO enforcement powers would alter the function of the Ombudsman (from Adjudicator to Enforcer). This would also be likely to impact negatively upon the willingness of bodies within jurisdiction to work with the SPSO on complaints. Traditionally, bodies are normally quick to take remedial action where the SPSO sees fit for them to do so.”

The Scottish Parliament’s Corporate body took a similarly negative view, with its reply to the Petitions Committee, from the Parliament’s Chief Executive, Paul Grice, saying : “As the SPSO has procedures in place for dealing with complaints from members of the public who are dissatisfied, including publishing statistics on the number of complaints received and the outcome, we can see no reason to establish public complaints channels. In addition, given the SPSO’s independence, it would not be appropriate for the Parliament to have a role in the SPSO’s complaints processes.”

Mr Grice went onto say : “The SPSO in the exercise of his functions is not subject ot the direction or control of any member of the Parliament, any member of the Scottish Executive or the Scottish Parliamentary Corporate Body. This is to safeguard the SPSO’s independence.”

”On the SPSO’s performance, the SPCB has noted that since the SPSO introduced new internal practices and procedures the number of outstanding complaints has fallen significantly and that the average turnaround time for determining complaints has also dropped substantially.”

Mr Grice ended by saying it was for the Scottish Government to propose legislation changes for altering the SPSO’s remit.

In the case of Petition PE1342, the petitioners responded to the written submissions by Mr Martin, Mr Grice & the Scottish Government, telling the Petition’s Committee in an email : “Having read the reports of the Scottish Public Services Ombudsman, Scottish Parliament Corporate Body and Scottish Government, it appears that nobody, Jim Martin included,is opposed to the widening of the Ombudsman's powers. We feel Parliament must improve the Ombudsman's powers to enforce findings and also they must make clearer definitions of topics on which SPSO can comment.”

The petitioners continued : “One such is "malpractice", for which the SPSO's office provided a number of possible definitions, but could not provide definitive and practical clarification of the criteria which would be applied and to what degree malpractice might occur before SPSO would be obliged to comment.”

The petitioners ended their email stating : “It would also be very useful if the Parliament could enforce time limits on SPSP for the completion of complaint investigations. This should allow for extensions in cases of exceptional complexity or where new evidence emerges, but these would be the exception rather than the rule and would have to have the specific approval of Parliament or its appointed committee.”

An additional petition involving the SPSO, Petition PE1341, filed by Dr R A Rahman, calling “on the Scottish Parliament to conduct an annual audit of the public expenditure on the Scottish Public Services Ombudsman (SPSO) and establish public complaint channels to examine the public dissatisfaction at the SPSO in managing complaints raised by members of the public.” was, according to the Parliament’s website “closed under Rule 15.7 of Standing Orders on the grounds that the Scottish Public Services Ombudsman makes an annual budget application to the Scottish Parliamentary Corporate Body which is considered annually by the Finance Committee and the Scottish Government, also that regular financial performance information is supplied by the Scottish Public Services Ombudsman to the Scottish Parliamentary Corporate Body.

The decision to close Petition PE1341 went onto state : “Further, Audit Scotland has made it clear that the external auditors perform an annual audit of the Scottish Public Services Ombudsman in accordance with the code of audit practice. Audit Scotland may produce a further report on the audit but, to date, ‘appointed auditors have produced unqualified opinions of the annual accounts of the Scottish Public Services Ombudsman and the Auditor General has not produced any reports’.”

Further developments will be reported, given this is a regulation issue involving public services.

15 court challenges, huge expense claims, lack of consumer confidence & no Master Policy scrutiny after two years tells all on Scots law quango SLCC

After two years the SLCC has failed to live up to consumer expectations. AS THE Scottish Legal Complaints Commission prepares to publish its latest annual report, which is expected to show a drop in complaints being investigated by the hapless law complaints quango which itself has yet to produce any successful prosecutions of ‘crooked lawyers’, it was revealed earlier this week in the Scotsman newspaper the SLCC, which has so far not endeared itself to solicitors or the typical annual roll of thousands of victims of Scotland’s notoriously poor legal services market now faces around 15 legal challenges from the legal profession to its authority in Scotland’s Court of Session.

The SLCC have already lost two court challenges, one brought by a complainant who was awarded rare legal aid to pursue a full court of session appeal, while the other was brought by the Law Society. I reported on both those cases in an earlier articles HERE & HERE. A source close to the law complaints quango claimed earlier this week they expected to lose many more of the court challenges now building up.

While the SLCC has attempted to portray itself as an ‘independent’ regulator of complaints against solicitors, the past two years of its work, and nearly three years of existence have if anything produced a slew of revelations the law complaints quango is more anti-client, or anti-consumer than as it would have us believe, a fearless defender of client’s best interests.

Diary of Injustice reported how SLCC Board members had berated consumers in internal emails. Over the past two years, investigations into the conduct of the Scottish Legal Complaints Commission’s own board members has revealed a culture of hate fuelled remarks directed against consumer groups, clients, while board members openly expressed antipathy & animosity towards claimants to the Law Society of Scotland’s Guarantee Fund, which is one of the areas the SLCC was given a mandate in the Legal Profession & Legal Aid (Scotland) Act 2007 to oversee, along with the infamous Master Policy, the latter of which was the subject of an independent investigation carried out by the University of Manchester’s Law School, who revealed in their final report there were client suicides connected to the Master Policy, information the insurers who run the Master Policy, Marsh, Royal Sun Alliance & others, and Law Society had suppressed.

Master Policy report revealed client deaths covered up by Law Society. You can read more about the University of Manchester’s report on the Master Policy, here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'. However, three years on since the law complaints quango was created in a blaze of publicity to restore public confidence in the handling of complaints against Scottish solicitors and to keep an eye on how clients are compensated for the actions of ‘crooked lawyers’, and over a year on since the SLCC’s own report tied up the Master Policy to deaths, the SLCC is still bogged down in discussing what it should actually be doing with regards to the highly contentions Section 39 of the LPLA Act : Monitoring effectiveness of guarantee funds etc

The latest references in the SLCC’s most recent published board meeting minutes (September 2010), make for further, almost hopeless reading on the subject of monitoring of the Master Policy, where the SLCC’s board were told :

“5.1 Guarantee Fund Research: An update was provided. Members noted the progress being made on procuring a suitable research company.

5.2 Master Policy Research: The approach to information gathering was discussed and the cost implications of this piece of research. Once costings have been attained a further discussion will take place at the next suitable Board meeting. There was wider debate about the direction of the research and the ongoing need for a steering committee separate to the Board and whether the project should report directly to the board via the ICEO. It was agreed that the Chair, AP and ICEO should meet separately to discuss this.”

Taken in terms of what the Scottish Legal Complaints Commission’s board have achieved so far this year on their monitoring remit, this is indeed a poor state of affairs.

The SLCC’s Board meeting of January 2010 revealed :

“The Chair of the Research Group gave an overview of the paper on Oversight and a brief discussion ensued. It was agreed that the Board would authorise the Chair of the Research Group:

8.1 to instruct Professor Stephen to conduct the necessary statistical analysis of such worthwhile data as is made available to him by the Law Society and Marsh in relation to the two schemes at a cost not exceeding £6k inclusive of VAT;

8.2 and to prepare a tender for the survey research of a stratified sample of claimants and practitioners of each scheme if the Law Society and Marsh confirm in writing that they will assist in the distribution of such questionnaires

In the February 2010 board meeting minutes, the decisions of January had translated into inaction :

“10.3 AP updated all present on the progress of the Master Policy and Guarantee Fund Research. AP is still waiting on a response from the LSS and will ask for a response by the 5th March. “

By March 2010, little further action had taken place, and the SLCC Board meeting heard :

“AP updated the Board on the progress of the research currently being undertaken. The Board expressed increasing frustration at the lack of information being provided by the LSS on the Master Policy. The Board wish to be in a position to complete the research by the end of the financial year.

By May 2010, again, little had changed although the SLCC’s board were told that Marsh were not likely to give any more information on the Master Policy :

“11.1 AP updated Members and reported that research continued to be undertaken in terms of the Master Policy. Members expect to be in a position to complete the research by the end of the financial year.”

By July, 2010, it appears disaster had struck the SLCC’s intentions to do anything with regard to monitoring claims against the Master Policy, with the board meeting of that month hearing :

“5.1 Master Policy and Guarantee Fund: A verbal update was given which touched upon the issues of the time it was taking to obtain information, and the fact that information may never be forthcoming from Marsh as they are under no legal obligation to provide it and because of commercial sensitivity may not be able to provide it. A discussion took place on the merits of splitting the research and Members agreed to separate research in relation to Master Policy and Guarantee fund and press on with research on the Guarantee Fund.”

A legal insider this morning condemned the amount of time the SLCC had wasted over moving on its remit to monitor claims against the Master Policy & Guarantee Fund.

He said : “The SLCC have been around for nearly three years and should have had all this in hand when they opened for business on October 1st 2008. It is ridiculous for the SLCC’s board to sit around discussing what is to be done when we all know what needs to be done, which is a forceful audit of all claims made against the Master Policy & Guarantee Fund.”

A client who has been attempting to make a claim against the Master Policy for over two years said the SLCC were obviously not interested in looking into claims if all they have done in two years is talk about it’.

He said : “I have a pile of letters between the Law Society, Marsh and me which go back over two years yet I am no further forward with my claim and the SLCC have done nothing. Life is clearly cheap at the SLCC when it comes to trying to get them to investigate whether you are going to get your money back after your lawyer has stolen it.”

However, I can reveal today the SLCC have now been invited to monitor at least two claims against the Master Policy, and I will report developments on this at a later date.

SLCC’s Board members quick to claim expenses, not so quick to help consumers. While the SLCC has no explanation for the ongoing difficulties it seems to encounter at every turn in relation to its monitoring role in connection with the Master Policy, the law complaints quango and the Scottish Government have started a recruitment campaign for an extra four board members to ramp up their expense claims to allegedly given the SLCC some ‘consumer credentials’. This latest attempt to dress up the SLCC, dubbed by one MSP as “a front company for the Law Society” will see three non lawyer & one extra lawyer board members being added to the SLCC’s already cumbersome, costly, and very much anti-consumer operation, as I reported earlier this month here : Quangocrats wanted : Scottish Legal Complaints Commission seek ‘non-lawyer’ board members with legal & ‘consumer’ backgrounds at £209+ a day

I doubt stuffing the SLCC’s board with extra quangocrats will do anything to promote the SLCC as a fearless defender of consumers who fall victim to the reliably crooked elements of Scotland’s legal profession, when after nearly three years, nearly half a million pounds in expenses claims, and a consumer attitude which basically stinks, there is really little to show for consumers best interests against rogue solicitors, while the Law Society of Scotland, still very clearly rule the day on complaints, claims, & court cases against the legal profession ...

A very Judicial success : McKenzie Friends to hit Scotland’s Sheriff Courts soon, Law Society agrees on ‘automatic right to use lay assistants’

Scotland’s Lord Justice Clerk, Lord Gill’s reform proposals helped bring McKenzie Friends to Scots Courts system. THE FINAL CHAPTER in the long running campaign to bring McKenzie Friends to all of Scotland’s courts, which began with the consideration of the issue in 2007 by Lord Gill’s Civil Courts Review, has now finally been written, as the Sheriff Court Rules Council announced this week it had finalised its consideration of rules on the use of McKenzie Friends across Scotland’s Sheriff Courts, with enactment allowing unrepresented party litigants to apply to use a lay assistant expected within a matter of weeks.

A spokesperson for the Sheriff Court Rules Council stated : “The Sheriff Court Rules Council further considered draft rules for the use of a McKenzie Friend at its meeting on 5 November. The Council agreed the substance of these and they will be submitted to the Court of Session for consideration later this month.”

The Scottish Parliament have also been briefed by the Sheriff Court Rules Council, who wrote to MSPs stating : “Current plans are for rule changes to be included within a miscellaneous instrument to be made later this month, but this of course depends on (a) when the Council’s proposed rules are finalised: and (b) the view taken of them by the Court of Session.”

However, further investigations & enquiries by Diary of Injustice have now established the original suggestion by the Sheriff Court Rules Council that McKenzie Friends be allowed to receive some form of payment for their services in the Sheriff Courts, has now been abandoned, and a similar set of rules forbidding the remuneration of McKenzie Friends, as was passed in the Lord Hamilton’s Act of Sederunt announced earlier in February of this year, which approved the use without remuneration of McKenzie Friends in the Court of Session in mid June 2010, will now also be used in the Sheriff Courts. I reported more on the remuneration issue during July, here : Lord President softens rules on Scottish McKenzie Friends, remuneration issue still out of step with England & Wales

A spokesperson for the Sheriff Court Rules Council answered enquiries on the remuneration point, saying : “The Council proposes that a similar provision in relation to the matter of expenses as to that which is already in place in the Court of Session Rules should be provided for in the sheriff court rules.”

A legal insider commented this was a rather unusual step, given there was already case law in England & Wales [N (A Child) [2009] EWHC 2096 (Fam)] to support the right or entitlement of a McKenzie Friend to charge or at least receive some form of remuneration for their services.

He said : “Personally I feel we could have done without this fuss over a McKenzie Friend being able to charge a fee or not. Forbidding it sounds almost anti competitive, and will at any rate, restrict the numbers of qualified individuals offering themselves up as McKenzie Friends. It is a counter productive attitude, and perhaps one which could be challenged later on under ECHR, with it possibly being open to interpretation of denying a party litigant the right to a fair hearing – if they cannot secure a qualified McKenzie Friend because of such a restriction.”

Law Society of Scotland now support a presumed right for party litigants to use a McKenzie Friend in Scotland’s courts. Meanwhile the Law Society of Scotland followed suit, its Civil Justice Committee stating “…there should be an automatic right to use a McKenzie Friend. However, it should be within the court’s discretion to insist on a withdrawal of a McKenzie Friend if it determines that the position is being abused.” which sets out an almost identical position to that of McKenzie Friends in England & Wales.

An official from one of Scotland’s consumer organisations who have consistently spoken in favour of McKenzie Friends commented on the Sheriff Court Rules Council announcement, welcoming the changes. He said : “I view this as a positive step in ensuring many consumers in Scotland who for various reasons do not have access to a solicitor can now enjoy a significant measure of assistance to help them as party litigants present their case in the Sheriff Courts.”

He continued : “The Civil Courts Review team and Lord Gill are to be commended for pursuing the question of McKenzie Friends in their two year investigation of civil justice in Scotland. I would also like to say the Scottish Parliament’s scrutiny of the issue also played a part in ensuring its speedy implementation.”

2007 Civil Courts Review consultation raised McKenzie Friends issue. The question of McKenzie Friends was first raised in the 2007 Civil Courts Review Consultation Paper (pdf) launched by Scotland’s Lord Justice Clerk, Lord Gill to being the Civil Courts Review. In the paper, Lord Gill stated : “The courts in England and Wales have for over 30 years allowed party litigants to be assisted in court by what have become to be known as “McKenzie friends”. They do not take on the role of a lawyer, but provide support in court such as making notes, prompting or giving advice on the conduct of the case. There have been occasions where the Court has gone further and, in particular circumstances, allowed the McKenzie friend to address the Court.148 In such cases the court has to exercise its statutory powers and grant a right of audience to the McKenzie friend. The desirability of permitting a party litigant to be represented in court by a person without a right of audience is a matter that the Review will consider.”

Consumer Focus Scotland have supported the idea of McKenzie Friends in Scottish courts for years. The Scottish Consumer Council (now renamed Consumer Focus Scotland) responded to the consultation paper in March 2008, over a year before a petition was filed at the Scottish Parliament on the issue, backing the call to introduce McKenzie Friends. The Scottish Consumer Council’s response stated : “We would welcome recognition by the Scottish courts of the need for discretion to allow some form of ‘McKenzie friend’ to accompany and possibly represent a party litigant in appropriate cases.”

Which? also supported McKenzie Friends. The Which? consumer organisation replied to the consultation paper in April 2008, also supported the introduction in Scotland of McKenzie Friends, stating : ”Some litigants cannot afford or cannot find a lawyer to represent them and may find it beneficial and useful to be represented by a non lawyer. We feel this should be permitted. We support the idea of Scottish courts allowing ‘McKenzie friends’ to accompany and perhaps represent a litigant where appropriate, provided appropriate safeguards are introduced.”

Lord Gill’s Civil Courts Review recommended the implementation of McKenzie Friends for Scotland. The results of Lord Gill’s Civil Courts Review were published in August 2009., his report finally recommended the implementation of McKenzie Friends in Scottish Courts, stating : “If the court considers that it would be helpful in any case, a person without a right of audience (a ‘McKenzie friend’) should be permitted to address the court on behalf of a party litigant. The court should have discretion to refuse to allow any particular person to act as a McKenzie friend on grounds relating to character or conduct and to withdraw a permission to at as such at any time. The rules of court should specify the role to be played by such persons and should provide that they are not entitled to remuneration.”

A little help from Australian Barrister, Ian Hanger QC supported McKenzie Friends for Scotland. Lord Gill's recommendations on McKenzie Friends also had a timely note of support from the original McKenzie Friend himself, Ian Hanger QC, who wrote to the Scottish Parliament, supporting the introduction of McKenzie Friends into Scottish Courts. Ian Hanger QC wrote in his letter : “In Australia, most of our courts have the power to permit a non-qualified person to, in effect, represent a litigant. A McKenzie Friend does not have a right to address the court. That right is confined to quietly assisting the unrepresented litigant. The Australian experience has been that it has worked successfully. … I cannot see that the floodgates would be opened by permitting, in appropriate cases, the presence of the McKenzie Friend to help the unrepresented litigant. In some cases you will get a brilliant law student who will provide enormous assistance to the Court .. I would urge the Parliament to permit the appearance of the McKenzie Friend."

Insiders at Holyrood and from the legal profession point to Ian Hanger's invaluable and timely letter to the Scottish Parliament in support of McKenzie Friends as 'having sealed the deal' on McKenzie Friends coming to Scotland.

Lord Woolman granted Scotland’s first Civil Law McKenzie Friend request Two months after Lord Gill had recommended the introduction of McKenzie Friends to Scotland’s Courts, and nearly 40 years since they were introduced to England & Wales, the first ever civil law McKenzie Friend in Scotland’s Court of Session was granted by Lord Woolman in a long running civil damages action which named Motherwell College, North Lanarkshire Council & Edinburgh Law firm Simpson & Marwick as defenders. The case, a medical injury claim M.Wilson v North Lanarkshire Council & Others (A1628/01) was again recently in the headlines, here : FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day

McKenzie Friends made official in Court of Session by Lord Hamilton. In June of 2010, Scotland’s Lord President, Lord Hamilton implemented rules & guidance on the use of McKenzie Friends in Scotland’s Court of Session as of 15 June 2010. This speedier than expected implementation came about after intense media coverage online and in the national press, ensuring after Lord Hamilton’s Act of Sederunt announced earlier in February of this year finally took effect, anyone who cannot obtain legal representation for litigation which demands a place in Scotland’s highest court, now have the right to file a motion requesting the services of a McKenzie Friend to assist their case.

The final chapter is now written for McKenzie Friends in Scotland. This time, despite occasional judge bashing, Holyrood bashing, attempted & thankfully unpublished bashing of a senior Scottish Minister for not supporting a petition, media bashing, Law Society bashing, and even claims by some for credit for something which was already set in stone at least a year before (that pushing at an open door feeling), the legal system got it right ... or perhaps ‘mostly right’, albeit having to be spurred on by individuals cases who have greatly been denied access to justice for so long in the Scottish Courts. We all, of course, have a great deal to thank Lord Gill for in his Civil Courts Review conclusions and his comments which have led to speedier than usual reforms in the Scottish justice system.

We should also not forget the help from our Australian cousins, Scottish politicians such as MSPs Margo MacDonald & David Whitton who both raised the political profile of the McKenzie Friends issue, the Scottish Government who have introduced a 'talking McKenzie Friend with rights of audience' via the Legal Services (Scotland) Act 2010 (pdf), the significant media coverage, both online and in the national press, the help of consumer organisation Which? and the dedication of those working for our Scots consumer champion in the form of Consumer Focus Scotland, which the Westminster based coalition Government plans to axe, in what must certainly be an act of cutting off one’s nose to spite one’s face, or perhaps, limit the powers of consumers to stand up to big business & vested interests.

I don't know about you, but I’d call that team work, all the way from the benches of Scotland’s Court of Session on a bleak winter’s day, to the great cities of Australia, which are no doubt about to enjoy a long luxurious summer. As a journalist, its been fun, and hopefully informative & helpful to all, to write about it. This McKenzie Friend has now left the building.

Consumer Focus Scotland welcome Scottish Govt’s proposals on civil justice, say economic difficulties make need to reform even more critical

Consumer Focus Scotland welcome Scottish Government’s response to Lord Gill. CONSUMER FOCUS SCOTLAND have welcomed the Scottish Government’s response to Lord Gill’s 2009 Civil Courts Review, proposing radical moves to overhaul Scotland’s antiquated civil justice system, which Lord Gill himself described as “a Victorian model that had survived by means of periodic piecemeal reforms”.

While welcoming the SNP administration’s plans to implement 'some' of Lord Gill’s recommendations, Consumer Focus Scotland pointed out the current financial difficulties facing the country makes the need to reform civil justice more critical than ever.

Responding to the publication of the Scottish Government's response to the civil courts review, Sarah O'Neill, Head of Policy and Solicitor at Consumer Focus Scotland, said: "We welcome the publication of the Scottish Government’s response to the civil courts review, and look forward to considering its content in detail. Clearly since the review’s report was published, the economic circumstances in which any reforms are taken forward look very different. Careful thought will need to be given to how best to implement any reforms in this context.”

Ms O’Neill continued : "It would be easy for discussions in the context of the current economic climate to focus only on the impact this has on the practicality and feasibility of reforming the civil justice system. But the economic difficulties people are facing have very real impacts on their experience of legal problems and actually makes the need to reform the system to help people to resolve these as quickly and appropriately as possible even more critical.”

"We are therefore pleased to be able to contribute to this ongoing debate by leading the work of the Civil Justice Advisory Group, under the chairmanship of the Right Honourable Lord Coulsfield. We look forward to publishing the Group's report with recommendations for the way forward in early 2011."

More on the Civil Justice Advisory Group along with details of their recent seminar & presentations from officials can be found HERE

Scottish Government have agreed to introduce Class Actions & other reforms to Scots civil justice system. The Scottish Government announced its intentions late last week to implement ‘some’ of Lord Gill’s Civil Courts review recommendations to reform the Scots ‘Victorian’ civil justice system, bringing Class Actions, a new tier of judge & ‘more effective’ case management to Scotland’s courts system. I reported on those developments here : Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’

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 :

• 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, can be found here : Civil Courts Review - The story so far.

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

Lord 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.

Justice 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 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 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 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 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 :

• 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)

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.

Lord Gill’s Civil Justice reforms ‘cherry picked’ in Law Society report as lawyers rush to protect ‘Victorian’ business model over access to justice

Law Society finally submit their proposals to cherry-pick Lord Gill's Civil Justice reform recommendations. AFTER well over a year since the Lord Justice Clerk, Lord Gill published his damming 2009 Civil Courts Review investigation of what he himself branded Scotland’s “Victorian” justice system, the Law Society of Scotland have today finally submitted their own recommendations, effectively cherry picking ‘some’ of the reforms recommended by Lord Gill which the Law Society feel are broadly in favour of the legal profession’s vested interests, while also recommending the Scottish Government form a Civil Justice Council for Scotland, which unsurprisingly will be driven by the Law Society itself.

Lord Gill. The Lord Justice Clerk, Lord Gill spoke at last year’s Law Society of Scotland’s 60th Anniversary Conference, castigating Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms”. Lord Gill went onto say Scottish civil justice fails on many counts, have notorious delays and high costs to litigants, deter claims which may be well-founded and branded its procedures as frustrating and obstructive rather than facilitating the achievement of justice. I recently reported on the one year plus, anniversary of Lord Gill’s Civil Courts Review, and the lack of any progress on the Lord Justice Clerk’s recommendations to reform Scotland’s ‘Victorian’ civil justice system, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

Law Society now ‘support’ the introduction of McKenzie Friends, as long as they are not paid and don't compete with solicitors. Among the many recommendations of Lord Gill which the Law Society makes supportive comment, the question of the introduction of McKenzie Friends, which the Law Society & Faculty of Advocates both initially opposed during hearings at the Scottish Parliament into Petition 1247 (McKenzie Friends for Scotland), has now attracted a ‘qualified support’ from the Law Society.

The Law Society’s submission to the Scottish Government on the issue of McKenzie Friends states : “The Committee has had the opportunity of further debating the issues and is supportive of the introduction of McKenzie Friends. The Committee agrees that there should be an automatic right to use a McKenzie Friend. However, it should be within the court’s discretion to insist on a withdrawal of a McKenzie Friend if it determines that the position is being abused.”

However, and not unexpectedly, the Law Society has now revealed its official opposition to the prospect of McKenzie Friends (lay assistants) being paid for their services in Scottish courts – an opposition borne out of the Law Society’s fear of its member solicitors losing business to vastly cheaper McKenzie Friends. While Scottish McKenzie Friends are prohibited from being paid for their work, existing case law in England & Wales supports McKenzie Friends receiving some form of remuneration.

The Law Society stated, with regard to their opposition to McKenzie Friends being paid a fee : ”The Committee would be concerned if Mackenzie Friends were remunerated for their assistance. The Court of Session Rules Council has drafted a Rule on the basis that Mackenzie Friends will not be paid, which the Committee supports.”

Law Society report also recommended spying on McKenzie Friends with an online register. In a sinister twist with overtones of unwarranted spying by the courts & legal profession on individuals appearing in court as McKenzie Friends, the Law Society submission to the Scottish Government also recommended keeping a register of people who appeared in Scottish courts as McKenzie Friends, enabling those individuals ‘to be monitored’. The Law Society’s justification for spying on McKenzie Friends states : “There is also a concern if Mackenzie friends provide assistance to a large number of unconnected party litigants. This should perhaps be monitored. One option would be for an on-line register of all persons who appear as McKenzie Friends.”

Consumer Focus Scotland & Lord Gill support wider public legal education, as do now the Law Society, to a certain extent. Regarding Lord Gill’s recommendation of ‘wider public legal education’, an issue championed for some time by Consumer Focus Scotland, and the subject of a recent petition (Petition 1354) to the Scottish Parliament, the Law Society’s submission states : “The Committee welcomes public legal education. The Committee believes that public legal education helps overcome hurdles which may impede access to the legal system and accordingly access to justice.”

“The Committee welcomes the current in-court advice project and believes that the project initially started in Edinburgh Sheriff Court should be extended throughout all Sheriffdoms in Scotland. At present, unrepresented litigants, through the in-court advice schemes, can receive advice before their case calls in court. These initiatives clearly improve access to justice but require to work in conjunction with a properly funded legal advice scheme giving access to advice by solicitors. Although there are other in-court advisory schemes, the one in Edinburgh is free and should be the model for other such advisers.”

It took 19 years to raise Scotland’s small claims limit from £750 to £3,000, now the Law Society wants to limit the value of Sheriff Court cases once again. Another of the Civil Courts Review recommendations, namely that of the increase in values of claims the Sheriff Court can hear, from its current level of £5,000 to £150,000, received a more frosty response from the Law Society, who, unsurprisingly, with its members potentially losing business & Court of Session appearance fees, claimed : “The Committee is very keen to retain the Court of Session as a court of first instance for suitable cases. The Court of Session is a centre of excellence, which is well respected for both the high level of judicial expertise and the guidance which it provides to the lower courts, both as a court of first instance and as an appellate court.”

The Law Society preferred a smaller increase in Sheriff Court case values, stating further in its submission : “Taking account of these views and of those who deal with other types of litigation, including commercial actions, the Committee consider that an appropriate threshold for Civil cases in the Court of Session would be not less than £20,000 and not more than £50, 000. i.e. The privative jurisdiction of the Sheriff Court should be increased from the current £5,000 to at least £20,000 but should not be more than £50,000.”

With further regard to personal injury claims & the value of cases, and Lord Gill’s recommendation that a specialist personal injury court should be created, based in Edinburgh Sheriff Court but with jurisdiction throughout Scotland, giving pursuers a choice between local access to justice or the advantages of a Sheriff Court with all Scotland jurisdiction, the Law Society categorically opposed the idea, stating : “The Committee is not persuaded there is a rationale for the introduction of a national Personal Injury Sheriff Court in Edinburgh or any other single location. The Committee still favours specialisation for Sheriffs in each Sheriffdom. Much depends on the privative level of the Sheriff Court. If appropriate specialists are employed and the threshold were to be set between £20,000 and £50,000 there is no need for a national court.”

Scots have waited 27 years for Class Actions, will have to wait some more. On the issue of Class Actions or multi-party actions, also recommended for introduction by Lord Gill, the Law Society disagreed with some of Lord Gill’s views, doubtless in an effort to prolong the introduction of class actions to Scotland’s civil justice system. The Law Society’s submission to the Scottish Government on the question of the introduction of class actions to Scotland states : “The Committee do not agree that judicial discretion should be exercised to determine whether a multi-party litigation is an opt-in or opt-out (ie included unless they tell the court that they do not wish to be included) for claimants. The Committee consider that depriving an individual of the right to litigate requires primary legislation. This is an important question of access to justice.”

The Law Society also disagreed with Lord Gill’s recommendation that Petitions for judicial review should be brought promptly and, in any event, within a period of three months. The Law Society instead claimed : “a three month time scale is too tight to exhaust all the administrative options. Six months would be a more manageable and appropriate period, particularly if the court had further discretion in the circumstances where it was just and equitable to allow a petition outwith the period.” The Law Society went onto agree with recommendations for tests on the success of Judicial Reviews, agreeing that a ‘sift’ panel should be introduced to remove Judicial Reviews which have no chance of success, with those who fail the first test being able to appeal to a second ‘sift’ panel.

On the question of ‘mediation’ in disputes, the Law Society stated that mediation and other forms of extra- judicial dispute resolution should be voluntary, and agreed that a free mediation service should be provided for claims under the new simplified procedure. The Law Society’s submission contended “such a [mediation] service would only be successful if it is funded and publicised by the Scottish Court Service and is effectively free to the users.”

The Law Society issued a Press Release, ever-imaginatively-titled Society urges Scottish Government to implement civil justice reforms, announcing its orders to civil servants & Scottish Ministers submission to the Scottish Government. Kim Leslie, convener of the Society's Civil Justice Committee, said: "Lord Gill's report identifies a number of structural and other weaknesses currently affecting Scotland's civil courts, and makes recommendations designed to make radical improvements which, if implemented, will dramatically alter the delivery of civil justice in Scotland. We made submissions to the initial consultation as part of Lord Gill's review and welcomed publication of the report in September 2009. We are now keen to see implementation of some of the key recommendations to improve civil justice in Scotland.”

"The scope of the review was huge, and the Society's Civil Justice Committee has not commented on every recommendation in the review, however one of our own key recommendations would be to separate civil and criminal business within the Sheriff Court because many of the current problems arise from the huge amount of judicial time which is spent dealing with summary cases.”

“We also support the view that there should be specialisation within the judiciary, in particular in administrative, environmental and planning law as well as family, commercial and personal injury cases. Such specialisation could be introduced without the need for primary legislation and at no great cost to the public purse - there has already been a successful pilot in Glasgow Sheriff Court of such a system and think this would be beneficial if rolled out across Scotland. The committee is also keen that there should be the option of using a commercial court in each Sheriffdom."

The Law Society’s Press Release went onto say the Society's Civil Justice Committee has also backed increasing the threshold for civil cases in the Court of Session, Scotland's highest civil court. Currently the threshold for cases to be heard in a Sheriff Court is £5,000 and the committee believes this should be raised to at least between £20,000 and £50,000 to allow business to be directed to the appropriate level competent to deal with it.

Ms Leslie said: "Any increase in the threshold for cases to go before the Sheriff Court must coincide with the introduction of specialist sheriffs. We would also endorse the creation of a third tier, dealing with appropriate cases to alleviate pressure on the civil justice system.

"We are in broad agreement with many of the recommendations made in the Civil Justice Review, although we have also taken the opportunity to outline reservations on some of Lord Gill's recommendations, such as a national Sheriff Appeal Court for civil appeals. We would now urge the Scottish Government to implement some of the recommended reforms including the establishment of a Civil Justice Council for Scotland, which would bring in the cost and funding of litigation as part of its remit.”

"We are keen to see the introduction of workable improvements to Scotland's civil justice system for all those who use it and work within it and look forward to working with government in bringing forward reform."

The full Law Society of Scotland Civil Justice Committee report can be read at: Law Society of Scotland's Civil Justice response or readers can directly download it as a pdf, here : Law Society Civil Justice response

Protecting law firms business & extortionate fees, far & above over the rights of ordinary Scots access to justice doesn't come any more obvious than today’s Law Society’s response to the recommendations contained in Lord Gill’s Civil Courts Review.

Readers can download 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)

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.