Making Justice Work – Lawyers protest over Courts Reform (Scotland) Bill as legal profession fears end of it’s billion pound client rip-off ‘gravy train’

Lawyers fearing hit on their incomes protest against court reforms. LET’S FACE IT, the current, “Victorian”, framework of Scotland’s courts & justice system is not about delivering access to justice to the people of Scotland. Rather, it is, in actuality, nothing more than a business model for the legal profession to charge exorbitant, prohibitive fees to clients, milk the taxpayer for hundreds of millions of pounds in legal aid payments, and rip off clients and get away with it, backed up by the solicitor’s safety net of lawyers continuing to regulate, and cover up for, their colleagues.

So, when the Scottish Government, proposes the Courts Reform (Scotland) Bill of the Making Justice Work programme to clean up the pig-sty of justice system presided over by a Lord President who himself branded Scots justice as unfit for purpose, failing society and “Victorian”, it will come as little surprise to lean the legal profession, who’s income is derived from taking the role of a skulking predator lying in swamps waiting for their victims to come to them, is up in arms at the prospect of losing their chance to drain people of their wealth, at will.

The Courts Reform (Scotland) Bill if passed, will see all cases where thousands of cases involving damages of less than £150,000 are at stake, heard by new summary sheriffs instead of the antiquated Court of Session. The Scottish Government hopes the reformed process will be quicker and cheaper than the current justice model, which Audit Scotland has estimated is wasting £55 million a year – and many tens of millions more from clients who are faced with life draining fee demands from law firms who consistently fail their clients.

The proposals put forward by the Scottish Government, provide the legal framework for implementing the majority of recommendations of the Scottish Civil Courts Review, led by Lord Gill the former Lord Justice Clerk and now Lord President of the Court of Session, once known for his views on the sheer idiocy of Scotland’s Civil Justice system. The proposals also discuss a redistribution of business from the Court of Session to the sheriff courts, creating a new lower tier of judiciary in the sheriff court called the summary sheriffs with jurisdiction in certain civil cases and summary criminal cases. Other proposed measures include the creation of a new national sheriff appeal court and a new national specialist personal injury court.

Admittedly, the Scottish Government’s proposals could go further than Lord Gill’s in house rendition of the Scots public’s right to access to justice, however, what has already been proposed has sufficiently stirred the legal profession into thoughts of further massed protests outside the Scottish Parliament and more rumoured court strikes, if justice is made to work for Scots, rather than made to pay for lawyers.

Predictably, the Law Society of Scotland claims there will  be all sorts of dangers to the justice system, should our “Victorian”, perhaps even stone age courts system be reformed, warning in a Press Release that the Scottish Government proposals to radically overhaul Scotland's civil court structure could produce a deluge of work for Scotland's sheriff courts, causing significant delays for those who depend on local courts.

The Law Society also claimed the proposals contained in the draft Courts Reform (Scotland) Bill, significantly increase the threshold for cases to be heard by the Court of Session. Currently, the Court of Session can hear all civil cases where the sum sued for is £5,000 or above. The draft Bill proposes changing the requirements, so only cases valued at over £150,000 can be raised in the Court of Session.

Kim Leslie, Convener of the Law Society of Scotland's Civil Justice Committee said: "If the proposals are implemented as currently drafted, a deluge of cases could hit Scotland's sheriff courts. "There is a risk that sheriff courts will be unable to cope with the volume of new work suddenly arriving at their door. We expect this to be made worse by the recent Scottish Government decision to support the closure of 20% of sheriff courts across Scotland. "If sheriff courts are unable to cope with the increased workload, there could be significant delays for court users."

The Law Society of Scotland's Civil Justice Committee claimed they carried out research in to the effects of raising the threshold to £150,000. The ‘research’, carried out by the Law Society itself (and to be taken with a pinch of salt) allegedly revealed that only 254 cases settled with a value in excess of this figure, which represented less than 2% of Court of Session business.

Ms Leslie added: "If the proposals are implemented as currently drafted, we could end up in the paradoxical situation of an almost completely deserted Court of Session, whilst court users in the sheriff courts suffer long delays as the courts struggle to cope with an increased workload. The Scottish Government is right to raise the threshold; however, we would prefer to see the limit set at no more than £50,000. This would allow cases with a lower value, but which still raise complex issues of matter of fact or law, to continue to be heard by the Court of Session."

The Law Society of Scotland’s full response to the Scottish Government’s consultation on the Courts Reform (Scotland) Bill can be found here HERE and it is clear throughout that Court closures and delays have been used to mask the Law Society’s fears its members may end up out of pocket and unable to rip off enough clients to survive another day.

A deserted Court of Session - Now that would be a bitter blow to the legions of Court of Session senators on nearly £200,000 a year who end up with pension pots of up to one million pounds, and are so trustworthy they dare not adhere to a register of interests for Scotland’s judiciary in case the public find out our courts system is little more than a closed shop, and in some cases, family run business bent on wielding unchecked influence over public life and inflating profits, salaries & perks for those within it, instead of providing Scots with a justice system fit for purpose.

The Faculty of Advocates joined the Law Society in objecting to the Scottish Government’s plans, claiming the reforms will create a system where those who can afford it receive the best legal representation, while those on legal aid will suffer – much like how the current system operates. The Faculty of Advocate’s response can be found online HERE

The FoA said in a statement: “The effect of these combined measures will, in the view of the faculty, fundamentally undermine both access to justice and equality of representation. Litigants choose to bring cases in the Court of Session notwithstanding that they could, as the law currently stands, bring them in the sheriff court. They do so because the Court of Session provides a better forum for resolution of their disputes. The proposal would in effect deprive individuals on low and moderate incomes and SMEs [small and medium sized businesses] with serious cases, of the right and ability to instruct an advocate. This aspect of the proposal would favour wealthy and corporate litigants, who can afford to instruct counsel, over ordinary people and would create inequality in the justice system.”

Above the howls of protestations of the legal profession, who are now rumoured to be planning court disruption and massed protests outside the Scottish Parliament when the bill is to be voted on, the Scottish Government has made it clear the reforms and court closures are necessary to save money and streamline the system, and will not overburden the remaining courts.

A spokesman said: “The Scottish Government accepted the Scottish Court Service’s proposals to change the structure of our courts. Their proposals are now being scrutinised by parliament.The fragmented, outdated court system we inherited, where many smaller courts are not fit for purpose and are underused, is no longer sustainable.”

MAKING JUSTICE WORK – WHAT IS IT ?

The Making Justice Work programme brings together a range of reforms to the structure and processes of the courts, access to justice and tribunals and administrative justice.  It has been developed and is being delivered with partners across the justice system, including the Crown Office and Procurator Fiscal Service, Scottish Court Service, Scottish Legal Aid Board and the Police.

As one of the justice outcomes change programmes* , Making Justice Work (MJW) contributes to the delivery of National Outcome 16, 'Our public services are high quality, continually improving, efficient and responsive to local people's needs'. The programme contains five overarching projects, which cover both civil and criminal justice:

MJW Project 1: Delivering efficient and effective court structures - To create a cost effective, proportionate court structure in which cases and appeals are heard by the right court in both civil and criminal cases, reserving the use of the highest courts for the most serious and complex cases.

MJW Project 2: Improving procedures and case management - To improve the procedures of the justice system and to introduce active and effective management of cases, in order to minimise delays and adjournments to ensure the most cost effective use of precious court time.

MJW Project 3: Enabling access to justice - To develop mechanisms which will support and empower citizens to avoid or resolve informally disputes and problems wherever possible, and to ensure they have access to appropriate and proportionate advice, and to a full range of methods of dispute resolution, including courts and tribunals where necessary, and appropriate alternatives.

MJW Project 4: Co-ordinating IT and Management Information - To provide the strategic platform for the development of IT, data management and management information to ensure all justice organisations have access to the data and information that they need, with efficient administrative processes supported by appropriate technology.

MJW Project 5: Establishing a Scottish Tribunals Service - To establish an efficient and effective Scottish Tribunals Service by merging the administration of devolved tribunals and through the devolution of reserved tribunals to Scotland.

All five MJW projects are now up and running. You may have come across some of those that are being lead by partners across the justice system - for example: getting people to court; and the new summary system model.

National Outcome 16 can be achieved by delivery of benefits across the justice system. A benefits framework is being used to evaluate and track progress across the whole programme, to provide clarity to project managers as to where their own projects fit in, and identify gaps where we may need to initiate new work.

The Scottish Government are taking a co-ordinated system wide approach, integrating policy development (eg response to Civil Courts Review & Sheriff & Jury) with short term projects to save money, working with justice operational delivery partners and identifying, considering and tracking the delivery of benefits across the system

A little less Victorian, Lord Gill ? Proposal to ‘transform’ Scotland’s antiquated courts is little more than ‘updated business model for lawyers’, will have little impact on Scots access to justice

In reality, proposals to transform Scotland’s Courts will have little real effect on access to justice. THE LATEST plans to transform Scotland’s antiquated, prejudiced & famously ‘closed-shop-to-all-but-lawyers’ courts & justice system are now upon us in the form of the Scottish Government’s Courts Reform Consultation, coming somewhat desperately a whole four years after Lord Gill, now Scotland’s top judge, branded the Civil justice system as “Victorian” and “failing society”.

The plans are presented as a sweeping sea change to the speed of justice in Scotland, like so many earlier proposals which have led to the current daily chaos of Scotland’s courts where cases can languish for decades without a result.

The Courts Reform Bill as it is being presented follows Lord Gill’s earlier criticisms, stating that Civil courts are vital to the effective functioning of a civil justice system. However, the structure of the civil courts in Scotland is still largely based on a Victorian model. Because of that, and the massive social and legal changes which have taken place over the last century, the structure is now under a considerable degree of strain: too much business is taken up in higher courts - particularly the Court of Session - which could be more appropriately dealt with by lower courts; cases need to be better monitored and managed; the civil procedure rules urgently need modernised and made more accessible to the citizen; and there needs to be far greater flexibility in the ways actions can be brought and funded.

However, and in keeping with any in-house driven “reform” of a justice system notoriously dominated by the vested interests of a money making legal profession who regularly overcharge clients and prolong legal actions in court for no other purpose than making money, the plans may well end up as so many other ‘reforms’ to the justice system have ended up – putting money into the pockets of lawyers while clients and consumers not able to afford justice, lose out.

The Making Justice Work - Courts Reform (Scotland) Bill - A consultation paper, published yesterday by the Scottish Government “invites views on proposals to restructure the way civil cases and summary criminal cases are dealt with by the courts in Scotland. The proposals provide the legal framework for implementing the majority of recommendations of the Scottish Civil Courts Review, led by Lord Gill the former Lord Justice Clerk and now Lord President of the Court of Session. The proposals discuss a redistribution of business from the Court of Session to the sheriff courts, creating a new lower tier of judiciary in the sheriff court called the summary sheriffs with jurisdiction in certain civil cases and summary criminal cases. Other proposed measures include the creation of a new national sheriff appeal court and a new national specialist personal injury court.”

The somewhat hard-to-find consultation papers for members of the public who wish to give their views, can be downloaded HERE although readers would be advised to grab the documents quickly before the usual pettiness of the Justice Department kicks in and the links are changed to avoid too many submissions being made by the public at large. Replies to the consultation must be submitted by

The key proposals in the consultation include:

* Increasing the threshold under which only the Sheriff Court can deal with civil cases from £5,000 to £150,000 so that more can be dealt with locally - freeing up the Court of Session to deal with the most complex disputes.

* The creation of a new judicial post – the summary sheriff – to hear lower value civil cases and less complex criminal cases. These sheriffs will have expertise in such casework and, in many cases, will use a new simpler procedure to resolve disputes fairly, swiftly and efficiently.

* The creation of a Sheriff Appeal Court to deal with civil appeals and less serious criminal appeals.

* The creation of a national personal injury sheriff court as a centre of expertise.

* Improvements to judicial review procedure, including introducing a three-month time limit for applications to be brought.

Justice Secretary Kenny MacAskill was on hand to make the usual if somewhat nonsensical sweeping claims of change in the courts system for the better. Mr MacAskill said : “The civil justice courts have remained relatively unchanged for more than a generation. These reforms will help us ensure that the right cases are heard in the right places and therefore reduce unnecessary delays, cost and bureaucracy.”

Mr MacAskill continued : “The proposals will also mean that Scotland’s top civil judges will deal with Scotland’s most complex civil legal cases, with others being dealt with in local sheriff courts where they will still be subject to the same level of scrutiny as before and will be heard more quickly and efficiently, for the benefit of all. The impact of current delays and high costs go beyond the courts themselves to the very businesses and individuals seeking both quick and efficient resolution. As part of our Making Justice Work programme, we are working to create a modern justice system that is fair, accessible and efficient and that better meets the needs of the people of Scotland today and these reforms are a key part of this.”

Mr MacAskill could only rely on supporting comments from a solicitor, and the Association of British Insurers, both of whom predictably welcomed the Scottish Government’s proposals.

However, a representative from one of Scotland's consumer bodies told Diary of Injustice she felt the proposals were little more than “an update to a profitable business model for lawyers” and are a far cry from what is actually needed to give Scots consumers a more fair, less expensive & direct route to access the courts & justice system.

She said : “The proposals currently put forward appear to transfer the problems from one set of courts to another and do little to help people without legal representation access the courts. Party litigants and those who cannot afford legal representation will invariably find themselves excluded from the new arrangements which are clearly aimed at promoting the use of solicitors & other legal professionals.”

A court user who is currently stuck in a years long battle in the Court of Session was also critical of the plans, pointing out there is nothing in the bill to encourage more honesty on the part of law firms who take on legal cases just to “drum up business and fees no one can really afford”.

He said  : “Mr MacAskill’s plans fail to encourage higher standards in legal services and cut down on the numbers of victims falling to law firms who make false promises to clients of speedy results in cases which more often than not take years and end up in failure and clients personal finances swallowed up in legal fees.”

Cutting through the Justice Minister’s incredulous claims on the subject, what we are actually talking about in these reforms is, simply, creating new business markets for lawyers and the legal profession rather than giving the Scots public direct access to justice.

If, for instance, you are a party litigant, either through circumstances of not being able to afford the daft rates charged by Scots law firms for poor legal work with little chance of success, or perhaps you find yourself on the legal profession’s boycott list, these latest proposals from the Scottish Government will do little to give you increased access to the courts.

So, again, those vested interests in the courts system, in the form of solicitors & law firms, will as usual gain the most as in ramping up legal business on the back of feeding clients glorious tales of securing them massive settlements in ‘quick’ legal actions which actually will end up taking years to proceed to court at the usual vast expense to clients, and will simply clog up the Sheriff Courts instead of the Court of Session.

It is also of interest to note the plans put forward by the Scottish Government of creating a new judicial tier as well as effectively localising many more claims in local court cases will inevitably bring dangers where the currently undeclared interests of the judiciary may well begin to conflict with claimants cases being heard in Sheriff Courts.

The pitfalls of localising claims to local courts may begin to affect personal injury or damages claims, where for instance, undeclared links between members of the judiciary, their families and local professions, industries & public bodies who are subject to legal actions, will end up resulting in cases not be heard on a fair basis, for example, where a litigant may be suing a health board, law firm or other defender which has a connection to a member of the judiciary or someone in the local court staff rolls.

Such problems of conflict of interest are not resolved in the Scottish Government’s Courts Reform Bill, given the fact the same Lord President who once called Scotland’s justice system as “Victorian” has vehemently rejected a need for a register of interests as has been proposed to the Scottish Parliament here : Petition PE01458: Register of Interests for members of Scotland's judiciary.

Lord Gill is also bitterly resistant to outside transparency of the judiciary as reported in an earlier article here : VICTORIANA : Report reveals Lord President Lord Gill ‘froze out’ Judicial Complaints Reviewer amid series of revoked findings, secret unshared memos & dismissed complaints