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Law Society back on the hunt for more legal aid, while civil justice review faces legal talking shop.

05 Oct

 Lawyers want more legal aid money – the eternal cry of the legal profession.

“Give us more, more more, or we will strike, boycott, fiddle cases & the courts to our liking” are some of the threats banded around from the legal aid leeches of Scotland’s legal profession, and so they got their way yet again, passing a motion at last week’s Law Society of Scotland Annual General Meeting, cloaking their motion in a call for “reform of civil legal aid rules” on the back of the legal profession’s claim that the current system of legal aid payments have turned swathes of Scotland into “advice deserts” – reports the Herald Newspaper.

Well, those “advice & representation deserts” are the creation of the legal profession – not the Scottish Executive, simply because lawyers, who have got far too used to setting their own charges for work, now have to tow the line on legal aid cases – and thus so the policy of strike action & case boycotts came into being, in order to get what they wanted – and for the most part, it worked. The Executive duly obliged, by increasing the legal aid rates .. even though the Law Society’s own research on the issue, showed that legal aid payments had actually been rising, rather than falling as the profession actually claimed.

Of course, passing motions at an organisation’s agm are meant for the benefit of their own members – nothing to do with the public .. but we should take note because another round of threats, blackmail & more from Scotland’s money hungry solicitors is just around the corner in the fight for more legal aid money – on the pretext of it making things easier to represent clients & take on cases of all description.

Of course, we all know in reality, solicitors discriminate daily the types of cases they take on … and it’s nothing to do with how much legal aid is available .. its more to do with professional interests and whether that solicitor is honest enough or brave enough to represent the client in whatever instance is presented to them.

Many of these cases of course, relate to civil law – where recently the Lord Justice Clerk has been asked to carry out a review of Scotland’s civil justice system – a review that many campaigners, consumer organisations, and those who have been maligned by cranky civil law procedures in Scotland’s court system, have been calling for decades.

However, will the Lord Justice Clerk actually listen to those who have been beaten down by Scotland’s civil law system ? and if so, what is to become of the current mess of civil law procedures, which have also fed the gravy train of lawyers high fees for so long ?

Well, some in the legal profession are already beginning to talk down the review … which will of course, not be everything it’s supposed to be (seldom anything is in Scotland these days) … so we can probably expect a half way house, where whatever improvements are suggested, do not impugn the self given right of Scotland’s legal profession to award themselves as much as possible in high client fees, and spin cases out for as long as possible to milk that little bit more … and keep themselves in work.

One way to resolve this, is of course to enact those parts of the Law Reform (Misc Provisions) Act 1990, which were to open up the rights of representation in the Courts to others than the present gang of solicitors & advocates … such a widening of choice would certainly assist the public in being able to actually get into court, and perhaps take on cases which the legal profession had turned down, out of self interest or other nefarious motives .. and such an opening of the legal representation markets should have an effect on costs to the consumer too.

Of course, the Lord Justice Clerk may not be looking into actual cases of the past – because if he did, well .. that would certainly be much more revealing to the public and show just how Scotland’s judicial system has been turned on those who actually sought to take controversial cases to court – such as taking on a crooked lawyer or other crooked professional, or trying to pursue governmental departments or public bodies for their negligence or lack of accountability ….so the limited remit will be the order of the day again … something like – do a review, m’lord, but don’t find anything too controversial which the public might latch onto .. not forgetting the legal profession will also be snapping at his heels to the tune of – don’t affect our right to fleece the client !

A review of the civil justice system ? Please, Justice Minister, listen to those who have suffered from it … if you want to make real & honest improvements …

Read on for the articles, from the Herald Newspaper :

http://www.theherald.co.uk/news/news/display.var.1250493.0.0.php

Lawyers demand legal aid reforms
DAVID LEASK(david.leask@theherald.co.uk) March 10 2007

Lawyers yesterday demanded reform of civil legal aid rules which they say have turned swathes of Scotland into “advice deserts”.

Many Scots are finding it all but impossible to find a solicitor willing to take on a civil case, especially a family law matter, on legal aid.

The reason, claim lawyers, is that payment is made in a lump sum that has no bearing on the amount of work involved.

A motion calling for change in the way the aid is paid was passed unanimously at the Law Society of Scotland’s annual general meeting.

Caroline Flanagan, a family law specialist who sits on the society’s ruling council, told the AGM: “There is already anecdotal evidence of advice deserts appearing in parts of Scotland with solicitors stopping civil legal aid work.

“We need the profession to provide hard evidence so that we can present a strong case to the Scottish Executive. We need to be able to show where and why solicitors are not being paid sufficiently and the effect that this is having on the public’s access to legal advice.”

The executive introduced block payment fees for civil legal aid work in 2003. Yesterday, an executive spokesman said officials were well aware of emerging concerns. He said: “A number of steps are being taken to ensure there is a nationwide supply of legal aid services to provide access to justice for individuals.

“Last year we announced that the Scottish Legal Aid Board is to develop a network of publicly employed solicitors to provide extra help to the public in matters of civil law in areas where there may be unmet demand, so that people get the advice they need from whoever is best placed to provide it.

“In addition, the Legal Profession and Legal Aid (Scotland) Act enables grant funding to be given to non-lawyers to provide expertise in specialist areas.”

http://www.theherald.co.uk/business/comment/display.var.1251304.0.0.php

‘Scots law has taken great pride in its adversarial approach’

RICHARD NM ANDERSON, Advocate

The Scottish Minister of Justice has requested the Lord Justice Clerk to carry out a review of civil justice in Scotland. A good thing, I say. But not great.

Lawyers have a fondness for precedent and tradition. Aspects of Roman law can be seen at work every day in the Scottish Courts. Change for the sake of change is rarely tolerated. Despite the blindfold that adorns many statutes, however, justice is not entirely blind to what is going on around it.

Concern about the procedures in both our criminal law and civil law has been growing for some time. You can find mention as long ago as 1980 in the Royal Commission on Legal Services in Scotland. In 1995 Lord Cullen in Scotland – and later, Lord Woolf in England in 2000 – felt obliged to carry out a review of their respective civil court systems. Lord Bonomy later carried out a similar review in relation to the procedure in the criminal courts in Scotland.

The resultant reports did not make comfortable reading, throwing up litanies of expense and delay.

In Scotland we responded piecemeal. A further review by yet another judge – Lord Coulsfield – resulted in a new “fast-track” procedure for some categories of personal injury cases. Judges were to adopt a more “pro-active” approach to the management of such cases. Further piecemeal reform followed for commercial actions – first in the Court of Session and then, with success, in Glasgow Sheriff Court. Judges were again encouraged to be pro-active.

Perhaps carried away by the success of the new rules for commercial actions, the Sheriff Principal in Glasgow has now introduced a pilot scheme containing new procedures for personal injury actions in Glasgow Sheriff Court – requiring judges to be more … pro-active. Ditto in the field of criminal procedure where pro-active has taken the form of special intermediate diets, or pre-trial hearings, at which judges are expected to review undisputed evidence, and requests for expert evidence.

Scots are very cautious in the way they go about their business. Each of these piecemeal reforms has been first introduced with great care in pilot schemes with some success. But what happens when, or if, these piecemeal reforms are rolled out across the country, and are applied by every judge?

As with so many of these reforms, hidden cultural changes can lurk beneath what appears to be an attractive procedural change. Yes, these reforms do address the concerns about delay and costs. However, they may represent a more substantial and significant transformation of Scots law.

Scots law has traditionally adopted, and taken great pride in, its “adversarial” approach. It is tradition for parties in both civil and criminal proceedings to bring such evidence as they feel appropriate. And the judge, with no prior knowledge of the case, traditionally acts as passive umpire and guardian of the law.

In other jurisdictions, particularly those following the European system of civil law, they take great pride in, their inquisitorial approach. Here, an investigating magistrate undertakes a form of “official enquiry” in which the judge plays a pro-active part in the gathering of evidence, and in the notional search for the truth.

What concerns me about the above piecemeal reforms in Scotland, particularly when fully “rolled out”, is that they may result in a subtle shift in emphasis away from an adversarial system and towards a system that is more inquisitorial.

Will we see “pro-active” judges given the powers to rule out particular lines of evidence or a particular type of expert witness? Not inconceivable in a personal injury case, or at procedural hearings in commercial actions, or even at Intermediate Diets in criminal cases.

And who is to say whether or not that is a bad thing? It might well be the price that has to be paid to eliminate delay and expenses. But should such changes be allowed to take place without some consideration being given to their full consequences? Debate and deliberation on that scale cannot be done piecemeal.

The direction in which any reform of Scots law should go, and any necessary protections that should accompany it, I would suggest, requires something far grander in scope and authority.

Of course, some kind of review is necessary, and that is why I say the Scottish Minister of Justice’s decision is “good”. But again, what we are getting is reform on the cheap. It is no substitute for an in-depth review by a Royal Commission.

And that is why I say it is not “great”.

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Posted by on October 5, 2007 in Law

 

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