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Review of 2010 : Scots legal system ‘remains Victorian’, party litigants, court users & consumers face a continued battle for access to justice

30 Dec

Court of Session EdinburghScotland’s Court of Session still rules over ‘Victorian’ justice system. WHILE 2010 has brought a few, welcome, if ever-so-slightly-forced-by-media-attention reforms & changes in Scotland’s creaking ‘Victorian’ civil justice system, there is still, undeniably a long way to go for the Scottish Government, Scottish Parliament & Scottish Courts in ensuring access to justice, legal services & access to the courts for all Scots, especially those who cannot obtain or afford the services & typically outlandish fees of law firms who offer little in the way of speedy dispute resolution or even a modicum of success in many common types of legal disputes.

Over a year and a half on since the high profile announcement & publishing of the Civil Courts Review, the two year plus investigation of Scotland’s civil justice system undertaken by the Lord Justice Clerk, Lord Gill, and the high hopes many pinned on a speedy implementation of the hundreds of recommendations made by the Lord Gill, many consumer organisations, court users, and even solicitors themselves see the past sixteen months as providing Scots with little more than a talking shop for justice reforms. I reported on the lack of developments on the Civil Courts Review back in August 2010, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

Lord HamiltonLord Hamilton enacted McKenzie Friends in Scotland 40 years after the rest of the UK had the facility. For instance, one of the few tangible-to-court-users reforms enacted to-date has been that of allowing McKenzie Friends to operate in the Court of Session, a right hard won after a campaign mounted by consumer organisations, campaigners, continued reporting by the media, an original recommendation by Lord Gill himself to allow McKenzie Friends, and all spurred on by a ruling in the Court of Session last November which eventually led to the Lord President, Lord Hamilton enacting an Act of Sederunt in June 2010, allowing Scots (who, in April 2010 he branded too ignorant to know what a McKenzie Friend is), a facility the English & Welsh courts & public had enjoyed for a full forty years before and it should be noted that Scottish Sheriff Courts are still to enact McKenzie Friends, expected eventually in February 2011.

Judiciary of Scotland website coverScots Judiciary’s new website – a welcome move in bringing transparency to the judiciary, but like scenery, you cant eat it. Some may say, oh but what about the new Judiciary of Scotland website, the new GUIDE FOR PARTY LITIGANTS ; “Raising & Defending ordinary actions in the Court of Session(pdf), increased competition by way of the Legal Services (Scotland) Act 2010 (pdf) etc etc .. but after forty, fifty, sixty plus years, its just not enough to tinker with the curtains and hope everyone falls into line, proclaiming a new era in Scots justice, especially when the UK’s Supreme Court based in London, can, in a few hours, change Scots criminal law in an instant, as I reported in late October, here : Access to justice ? Scots criminal law changed by UK Supreme Court in a day, ‘Victorian’ civil justice reform proposals ‘growing older by the year’

There are, of course, some little gems from the new Judiciary of Scotland website, such as Scots now being able to see for ourselves how much the justice system costs us, despite most of us apparently not having access to it : Part-time Sheriffs beat full-time colleagues & senior judges in expenses claims as Scots judiciary finally publish judicial expenses online although again, these little gems appear to have been reared for publication after a dose of media attention and with the helpful assistance of Freedom of Information legislation.

The Scots judiciary’s shiny new website, as welcome as it is, has existed in an equivalent, perhaps better organised format in England & Wales for years, as well as the guide for party litigants, and the Scottish version Legal Services (Scotland) Act 2010 asp 16 (pdf) of the Legal Services Act (2007) for England & Wales has been so brutalised, butchered, twisted, tortured & re-written by the Scottish legal profession itself, eventually being passed by msps who were more concerned with doffing their caps to the Law Society’s influence in politics than the public’s right to justice, it has given Scots little more rights or choice against the legal services monopoly controlled by the legal profession after its near two year talking-shop passage in the Scottish Parliament.

Indeed, comparing the Legal Services (Scotland) Act 2010 asp 16 (pdf) and the Legal Services Act (2007) for England & Wales is like comparing a horse & cart to an Aston Martin DBS … with the Scottish Government & Parliament version giving the appearance of trying to fit the Aston’s Bridgestone tyres onto a wooden cart pulled by a donkey, such is the value they place on the Scots public’s access to justice and meanwhile the Law Society of Scotland was busy worming its way onto the Calman Implementation Group to ensure it had a say in giving the Scottish Parliament some tax raising (and doubtless expenses claims raising) powers, while also lobbying for the Society to be made an ‘approved regulator’, giving crooked lawyers an eternal Christmas.

In truth therefore, at the end of 2010, Scots access to justice, access to legal services or even access to the courts itself has changed little at the end of this year, with solicitors, advocates and law firms still effectively the gate keepers of the doors of justice, which remain so obviously closed in the face of anyone the legal profession doesn’t care for, or takes a slight to.

Richard Keen QCCurrent Dean of the Faculty of Advocates Richard Keen called for Class Actions two years ago, little happened since. Whatever happened to multi-party actions (Class Actions) being speedily introduced to the Scots justice system so the legal profession could, under the clarion call (made two years ago in January 2009) of the Dean of Faculty of Advocates, Richard Keen QC, take on the might of the banks and allegedly represent & protect the interests of consumers so robbed by many of Scotland’s financial instructions who themselves coincidentally sponsor many events within the legal profession itself ? Nothing, that’s what happened, nothing. Class Actions are still being talked about, talked about, talked about … with little movement made on the issue in the past sixteen months Lord Gill originally said Class Actions should become a reality and two years since the dean himself started shouting about it in the newspapers.

Of course, Mr Keen has been busy with other things since January 2009, such as representing the insurance industry against paying out damages in asbestos claims cases & challenging the new legislation (the Damages (Asbestos-related Conditions) (Scotland) Act 2009) which brought pleural plaques into the scope of asbestos claims. Mr Keen and the insurance industry, many of whom also coincidentally fund or have financial interests in the Law Society of Scotland’s Professional Indemnity Insurance scheme, the Master Policy, went onto lose their court challenge against the new asbestos compensation laws, as I reported at the beginning of the year, here : Lord Emslie defeats legal challenge over pleural plaques as Insurers ‘big name’ legal team fail to overturn Holyrood’s Asbestos compensation law

Just think if Scots could enter into Class Actions in such cases as asbestos claims, instead of victims having to approach only a few select law firms which end up dealing with the claims on a case by case basis while piling on the fees & time-to-claim-resolution to the point their clients end up dying before receiving any compensation. Of course, we are told it may come in 2011, or 2012 or 2013 … so as the clock ticks on and the years fly by, the next hope for developments in the long running saga of bringing Class Actions to Scotland, apparently lies with the considerations of the Civil Justice Advisory Group, under the chairmanship of the Right Honourable Lord Coulsfield. The CJAG is due to publish a report with recommendations for the way forward in early 2011.

Scottish GovernmentScottish Government eventually agreed to introduce Class Actions & other reforms to civil justice system ‘over years’. The Scottish Government, ‘ever swift’ to claim the high ground in all things Scottish, announced its intentions in late November to implement ‘some’ of Lord Gill’s Civil Courts review recommendations to reform the Scots ‘Victorian’ civil justice system, bringing Class Actions, a new tier of judge & ‘more effective’ case management to Scotland’s courts system, which I reported on here : Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’.

Lord gillThe Lord Justice Clerk, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference last year, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice.”

Lord Gill continued : “Unless there is major reform and soon, individual litigants will be prevented from securing their rights, commercial litigants will continue to look elsewhere for a forum for their claims, public confidence in the judicial system will be further eroded, Scotland’s economic development will be hindered, and Scots law will atrophy as an independent legal system.”

This is the 30th of December, 2010 and sadly little has changed, making 2010 another year that access to justice for all Scots was again, denied. Personally, I wouldn’t recommend anyone expect too much in the way of speedy reforms, unless campaigning is stepped up, along with perhaps a few public petitions, court rulings & media attention in 2011 to prompt changes & reforms which should have been introduced in Scotland decades ago, since everyone else had those same ‘reforms’ decades ago …

Readers are as ever, encouraged to download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

My coverage of the Civil Courts Review from its publication to the present, and the pace of reforms to civil justice in Scotland can be found here : Civil Courts Review – The story so far.

Whatever 2011 will bring for access to justice in Scotland, I will continue to report …

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