Top judge reassures lawyers court reforms will not dent their profits or interests. IN a speech to multiple vested interests attending the Law Society of Scotland’s recent Annual General Meeting, Scotland’s top judge, the Lord President Lord Brian Gill has defended proposals contained in the Scottish Government’s Courts Reform (Scotland) Bill, claiming the reforms, based on recommendations of the 2009 Civil Courts Review authored by Gill himself, will not reduce access to justice as some lawyers claim.
The judge went on to tell the audience of those who make billions of pounds out of Scotland’s courts & clients each year that the reforms would instead offer opportunities to the solicitors' profession.
Lord Gill, who has previously addressed the Law Society’s AGM in his capacity as Lord Justice Clerk, most notably when he criticised Scotland’s civil justice system as being unfit for purpose, and “Victorian” in its workings, was speaking as the first Lord President to address the AGM.
The speech “Looking over the horizon – life after the Courts Reform Bill” was intended to allay widespread fears within legal circles that lawyers fees, income and law firm’s profits will be hit by reforms to Scotland’s civil courts which include transferring cases of £150,000 or less to the Sheriff courts, where legal fees are significantly less compared with charges levied by solicitors for attending Scotland’s highest court, the Court of Session based in Edinburgh.
Speaking on the “private jurisdiction of the Court of Session”, Lord Gill said: “It has been recognised from the earliest days of the Review, that not all low value cases are straightforward. There can be many complicated issues in any type of case, regardless of value. It is foolish to suggest that all low value cases are straightforward. It is foolish likewise to suggest that all claims raised in the Court of Session involved complicated matters of law and procedure. Experience shows that the majority of the low value claims in the Court of Session are straightforward. In any event, the Bill makes provision for cases to be remitted to the Court of Session in appropriate circumstances (clause 88).”
“Some respondents to the Bill’s consultation have raised concerns that the remit test is too restrictive. In my opinion, it is essential that the remit provisions are necessarily robust.No one wants to see the daily sheriff court rolls or those of the Court of Session clogged with motion after motion for remits. That would seriously undermine the principles of the Bill.”
“The increase in the privative jurisdiction and in time, the introduction of the specialist personal injury court should ensure that cases find their appropriate level in the court system. Expenses will be lower for the parties. Cases shall be dealt with more expeditiously than at present. The specialist sheriffs, in partnership with the profession, will develop a body of specialist and authoritative case law. A greater emphasis on case management and improved use of IT will be introduced by way of court rules and will promote a pro-active, front loaded litigation that reduces the time spent waiting in court for short straightforward hearings. At the same time efficiencies will be improved in the Court of Session.”
“The Court of Session will continue to be the forum for high value and complex cases. Our hope is that these cases can be dealt with greater expediency as a result of the reforms, so that cancellations of hearings because of lack of judges and/or court time will be a thing of the past.”
“On the subject of the ‘development of Scots law’, Lord Gill claimed: “I do not expect that there shall be any reduction on the quality of decision making or any adverse effect on the development of Scots law. It is to the credit of our shrieval bench that the great majority of cases do not result in an appeal to the higher courts.”
“In the main, the quality of decision making is good, and is complemented by the Judicial Institute and the excellent training and support that it provides. The reforms as a whole will bring significant benefits to the quality of decision making in the sheriff courts. The introduction of the new tier of ‘summary sheriffs’ will ensure that summary crime, housing and low value financial claims are dealt with expeditiously at an appropriate level in the court system.”
“The summary sheriff will possess the same level of qualification and experience as sheriffs proper. The new tier will remove a significant amount of business from the daily work of the sheriffs, allowing them more time to concentrate on the more difficult cases.”
“The Sheriff Appeal Court will provide increased scrutiny in the decision-making and writing process than under the present system where the sheriff principal sits alone. It will have a greater understanding and insight into the daily workings of the sheriff court than is enjoyed by the Inner House.”
“When one views these aspects of the reforms together with the fact that at present, many civil appeals go no further than the sheriff principal, it is hoped that few appeals will have to be taken from the Sheriff Appeal Court.”
“What opportunity does it present? It gives to every solicitor in Scotland the opportunity to develop skill in appellate advocacy and to develop an expertise that has hitherto been seen as the exclusive preserve of the Bar.”
On the “Right to Counsel”, Lord Gill said: “I accept that these changes shall impinge on the types of cases in which counsel may be instructed without their fees requiring sanction from the court. I do not accept however, that the implementation of the Bill will remove access to justice.”
“Those pursuers who, at present, choose to litigate in the sheriff court as opposed to the Court of Session have received no lesser form of justice. I do not accept that it is a requirement for ‘access to justice’ that litigants are provided with the choice of litigating in a more expensive forum with the requirement that counsel has to be instructed to represent their interests. Why? Firstly, access to justice is inevitably and inextricably linked with affordability.”
Lord Mackay of Clashfern recognised that in address that he made to the Royal Society of Arts on that very subject: “There is no doubt that under our present [justice] system cost is a major barrier to using the law. Reducing costs should not be seen as an end in itself nor as an inevitability leading to a second-rate system of justice. Cost effectiveness pursued in the right way will lead to a more affordable system and to my mind is the only logical way to expect access to justice to be improved. I would like to emphasise that message. Affordability is the key to improved access to justice. Affordability to the taxpayer and to the individual.”
The changes proposed seek to make the system more affordable for the client consumer. That improves access to justice. Secondly, litigants are not being denied access to the courts, nor representation.
In conclusion, Lord Gill stated to the audience of solicitors: “The prospects, in my opinion, should make us optimistic. Our civil justice system will be fit to serve the modern society in Scotland that the previous generation of lawyers would not have recognised and will promote the fundamental principles that I mentioned at the outset. I am certain that the Law Society and its members shall not only survive the legislation, but shall adapt to it in its commitment to excellence. The reforms provide an opportunity for the profession to diversify, renew itself and to improve upon the work already undertaken in the Review. The opportunity is there for the taking. I urge you all to embrace it.”
There was no mention in Lord Gill’s speech of transparency regarding judicial interests, an issue currently under consideration at the Scottish Parliament by way of Petition PE1458: Register of Interests for members of Scotland's judiciary.
In terms of the lack of a register of judicial interests, litigants in Scotland’s courts currently have no basis to establish whether the judge hearing their case or even a judge involved in a criminal case, should be asked to recuse themselves or not due to conflicts of interest or financial and other interests that members of the judiciary are not keen on declaring openly. Therefore reforms of the courts as currently proposed do not go far enough to allow the public to determine whether cases are being heard fairly or not.
Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, and video footage of debates at the Scottish Parliament’s Public Petitions Committee deliberations on Petition PE1458: Register of Interests for members of Scotland's judiciary can be found here : A Register of Interests for Scotland's Judiciary