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

11 Nov

Lord GillLord 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.

Kenny MacAskillJustice 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 GovernmentScottish 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 Parliament HouseCourt 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 ActionsClass 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 for ScotlandMcKenzie 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 :

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.

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