Changes in small claims & disclosure law mask real needs of reform to Scotland’s legal system

10 Oct

An interesting week in the annals of Scots law for most,to be sure … the collapse of the World’s End murder trial, accusations from all quarters except those which matter that the Crown Office is incompetent & in bad need of reform, or better still replacement, the intervention of a Police Chief in an attempt to cancel promised inquiries into the McKie scandal, and the little matters of Lord Coulsfield’s recommendations on the laws of disclosure while the Scottish Government decided to finally raise the small claims limit, after 19 years.

The World’s End trial collapse, along with all it’s publicity, is a well timed example of just how poor the workings of our legal system are. A good reminder to anyone that while we may live in the 21st Century, our legal system is stuck in the dark ages, run largely by itself, in an unaccountable, rather dishonest, and almost dictatorial way, where no one is allowed to have a say on any changes which may alter the way of doing things which lawyers have been so used to for decades – making plenty money out of it too.

The Lord Advocate’s statement to Parliament on the failure of the World’s End murder trial, carried little of substance, being rather an attempt to control criticism of the legal system and the unbelievable way the Crown Office had acted in the case against Angus Sinclair, and while Elish Angiolini made her statement, many in the Parliament sat around like cabbages, either too stupid to take in the issues, or too cowardly to call for such significant change to Scotland’s prosecution service as to affect their own political careers …

Surprisingly, or not, we did have a couple of breaks this week, where Lord Coulsfield, in his independent review on the laws of disclosure of evidence in criminal cases, recommended there be a Disclosure Law, or at least rules on Disclosure which the Crown Office of course should obey and adhere to.

If the Crown Office ever adhered to justice and fair play, that would certainly be a first, so why on earth would anyone think they would change their way of doing things just because of a change in the Law ?

Wouldn’t it be better to reform, and perhaps, replace the Crown Office with an institution which is actually transparent & accountable ? or is the idea of a workable justice system simply too much for some people in Government and in the Parliament to achieve ?

The issue of small claims limits, also surprisingly got some action, after 19 years, where Justice Secretary Kenny MacAskill announced a rise in the limits of a small claims action to £3,000, from the measly £750 which the Law Society of Scotland and legal firms had lobbied to be held so low for the past two decades – simply to force people to use a lawyer and pay exorbitant fees for trying to recover anything more than a £750.

I covered the reasons why the small claims limit had been kept artificially low for the last 19 years here : Small claims limits in Scotland restricted to £750 for the last 18 years by the legal profession for their own interests.

Howsoever, Scotland again fails to come up the standards of the rest of the UK, where the limit of small claims actions is £5,000. Why then, has the Scottish Government disadvantaged the Scottish public in this matter with a lower limit ? What is so different about us that we can’t go in to court ourselves for a higher amount ? Could it be perhaps, more lobbying from the legal profession, who again are alarmed their business will be lost because people could simply do the work themselves ?

If you wanted to recover for instance, £2,000 you might have to spend £3,500 on a lawyer and court action to get it … those are the kind of economics the legal profession loves, take your money for anything, and you lose every time. It’s no wonder that even a sitting Lord Advocate tried to repeal legislation which was intended to open up the legal services market 20 years ago

On the subject of Lord Hardie’s influence over the delay of the implementation of wider access to legal services legislation, surely there should be an inquiry into why the sitting Lord Advocate of the time, was allowed to influence and delay the implementation of sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, even going as far as to suggest, in his most powerful position, repealing those parts of legislation – or is this an issue perhaps our shiny new Scottish Government has been told not to touch by the ever so threatening judiciary ?

To round the week off, and to show yet again, how twisted the political system still is, our ex Justice Minister & Deputy First Minister, Jim Wallace, went off to the House of Lords, after suggesting the idea himself .. probably in fear of perhaps not getting the appointment …

Mr Wallace, as Justice Minister, bears a significant measure of responsibility for the ills of the Scottish Justice system today, presiding over scandal after scandal, and keeping things working very smoothly for the legal profession, while ensuring it’s victims, and the country at large, saw no reforms in the public interest whatsoever. In fact, Mr Wallace voted against reform time & again – and voted against the Legal Profession & Legal Aid (Scotland) Act 2007, being brought in on the side of the Law Society of Scotland to do his damndest to kill off the prospect of the Law Society losing the right to fiddle complaints against crooked lawyers …

One of Mr Wallace’s other poor examples public service, is the Judicial Appointments Board – which was supposedly a try at an independent & transparent appointments system, but in reality only amounts to yet another screening process for the legal profession to keep any potential scandal or dark past secret, of those who rise to the judiciary in Scotland. Taking a look at who actually sits on the Judicial Appointments Board, noting the usual suspects who proliferate themselves on a number of other Committees, does nothing to inspire trust or public confidence … but .. where are the SNP on this ? how about some reform there too ?

Tinkering with the fringes of the legal system does nothing for reform …. so how long do we have to wait to see the right stuff with our politicians getting to grips with wholesale reform of Justice and cleaning up it’s sins & injustice of the past ?

Following articles from the Herald on small claims limits and hopeful changes in the laws of disclosure :

Small claim limit rises to £3000

DOUGLAS FRASER, Scottish Political Editor

Legal disputes over small amounts of money are to be made easier under changes announced yesterday by the Scottish Government.

The limit for legal wrangles over goods, house repairs, holidays or bank charges to be settled through the small claims system is being raised four-fold, so that more of them can be heard without having to hire a lawyer.

Since 1988, the upper threshold for a small claim has been set at £750. Justice Secretary Kenny MacAskill announced yesterday that it will be raised to £3000 from January, while there will also be increases for other types of civil action.

Personal injury claims are to be removed from the small claims procedure, meaning all such claimants will require medical evidence and legal representation.

The raised threshold was welcomed by the opposition and consumer groups. They have long argued that there should be the easiest possible method for a broader range of such disputes to be handled in the relatively simple, quick and easy procedures, without having to take a risk on paying a lawyer and going to open court. However, there was disappointment that the threshold has not been raised further.

Mr MacAskill said: “Hard-working Scots who have perfectly valid claims are being denied accessible justice due to the existence of an artificially low small claims limit. It is now 19 years since the limits were last increased and I believe the time has now come to set more realistic limits.
‘This tackles the cowboys who move on after a botched job’

“These new limits will mean that many more people will be able to make use of the less complicated small claims system within the sheriff court to resolve such claims. People who in the past were prevented from pursuing a claim against a business or individual will now be able to do so without having to employ a lawyer with all the extra expense that entails.”

The limit for action to be raised in the sheriff court instead of the Court of Session has been raised from £1500 to £5000. Above that level, disputes can go into the higher court.

The move was welcomed by the Scottish Consumer Council. Martyn Evans, its director, said: said: “We are delighted the Scottish Government has taken this decisive step to increase access to justice for people who buy goods and services. Every day people in Scotland buy computers, holidays, three-piece suites and other items that cost much more than £750. Now they will be able to seek legal redress against businesses which do not comply with the law, without having to face the choice of suing for less money than they are owed or paying a solicitor to go to court.”

Julia Clarke, of the consumer lobby group Which?, said: “People will be able to claim for more of their cases of dodgy holidays or badly-built kitchens. This tackles the cowboys who move on after a botched job with no redress against them.”

She said the English legal move, in recently raising the threshold for small claims from £750 to £5000, would have been preferable. The difference until now has meant some Scots taking their cases south of the border, using the law that lets individuals claim against companies in that firm’s home town.

Opposition support for Mr MacAskill’s announcement included Liberal Democrat Mike Pringle, who had been campaigning for nearly four years for the raised threshold. He also said it should be raised further to the level set in England of £5000.

Labour justice spokeswoman Margaret Curran said: “Labour welcomes the limit increase for small claims. The justice system must be accessible to everyone in society”

Amazing comment from Labour there … since it was Messrs Digby Brown, a well known supporter of the Labour party, and the same legal firm involved in the downfall of First Minister Henry Mcleish over the officegate renting scandal, who had lobbied for many years as the media had previously reported .. to prevent any raising of the small claims limit … now, onto the story on Lord Coulsfield’s ‘independent review’ .. if those two words actually do mean something in Scots Law these days.

Call for prosecutors to provide full details to defence lawyers


Criminal prosecutors should be legally bound to provide full information to defence lawyers in advance of a trial, the Scottish Government was told yesterday.

The call came from a retired judge who said the information should include material favourable to the accused, even if it weakens the Crown case.

The call came from Lord Coulsfield in a report commissioned from him last year by the previous administration.

Lord Coulsfield, who retired in 2002, was one of three judges who presided at the Lockerbie trial in the Netherlands. He was asked by the previous administration to review the law in the light of a 2005 ruling by the Privy Council which overturned the convictions of two men, James Holland and Alvin Sinclair, on the grounds of “non-disclosure”.

His findings include a recommendation for legislation requiring the prosecution to have regard to “the over-riding requirement of a fair trial”.

The legislation should provide a definition of a duty of disclosure, and require prosecutors to disclose to the defence “all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it,” said the judge.

This already happens in England and Wales and Lord Coulsfield said: “I do not see that there is any practicable alternative in the short or medium term.”

Non-disclosure by the Crown is a major issue in some of the most high-profile cases in Scotland, such as that of the Lockerbie bomber Abdelbaset Ali Mohmed al Megrahi who earlier this year was granted leave to launch a second appeal against his conviction.

Kenny MacAskill, the Justice Secretary, said: “The government welcomes this positive and helpful report. Disclosure is vital because it is essential that the defence have all the necessary information available to ensure a fair trial.

“Effective disclosure also contributes to a more effective criminal justice system and to earlier resolution of cases. I am indebted to Lord Coulsfield for his careful analysis. We will shortly publish a consultation paper to invite further views.”

Elish Angiolini, Lord Advocate, said: “The report marks a significant step towards achievement of the required degree of clarity in this complex area of law and practice.”

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Posted by on October 10, 2007 in Law


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