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