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AXIS TO JUSTICE: ‘Treat lawyers like Hospitals & Police’, Democracy ‘at risk’ if state refuses to fund litigants – Law Society & Faculty of Advocates attack plans to make secretive, slow Scots courts self funding

21 Oct

Fund lawyers like nurses & public services – say lawyers. DURING TIMES of financial crisis, Brexit woes and growing demands on nurses, doctors, the NHS, Police, education and everything else. public services should be forced to take an equal seat to the spiralling billions of pounds of public cash lavished on lawyers, the courts and legal aid – according to claims from the legal profession.

The demand for equal treatment to public cash comes from the Law Society of Scotland and the Faculty of Advocates – who, along with other legal vested interests – are calling for the state to fund all court actions and treat lawyers in the same ‘deserving of public funds’ category as medical care provided by the National Health Service, education, social care and Police.

The latest call from the Law Society of Scotland to increase – by millions more – the flow of public cash into legal business and struggling lawyers pockets – comes in answer to plans by the Scottish Government to hike court fees by up to 25% and turn the closed shop, secretive, slow and unjustly expensive Scottish courts run by the Scottish Courts and Tribunals Service (SCTS) into a self funding operation.

However, under the guise of defending ‘access to justice’ – loosely translated to ‘public cash for lawyers’ – the Law Society state in their response: “Plans to introduce the full recovery of civil court costs in Scotland would be damaging to access to justice, particularly for those bringing forward personal injury cases and more vulnerable people.”

The Law Society of Scotland’s response to the Scottish Government’s consultation on Court Fees goes on to state “any move towards full cost recovery should be avoided” and “that the state has a duty to help people in achieve ‘equality of arms’ in the courtroom.”

The Law Society also claims that a proposal to introduce a 24% rise in court fees would be ‘unjust and unjustifiable’.

Syd Smith, from the Law Society of Scotland’s Remuneration Committee, representing the views of pursuers’ solicitors, said: “We believe it is essential that the courts should provide an independent and impartial forum for resolving disputes between people or organisations and that the state has a duty to help those involved have equality of arms when their cases go to court.”

The Law Society has said that any new system for court fees would have to ensure they were proportionate, taking into account Lord Gill’s Review of the Scottish Civil Courts, and the findings of Sheriff Taylor in his Review of Expenses and Funding of Civil Litigation in Scotland.

Mr Smith said: “We think the focus of any review of court fees should be on redressing the balance between claimants and defenders in personal injury cases. However if the government’s aim is to have a system where 100% of the cost of the courts are covered by fees paid by those involved in the actions lodged, it will be vital to have proportionate fee levels.

“The consultation option to introduce a 24% rise in court fees would represent an unjust and unjustifiable increase which would create a very real barrier to access to justice for claimants especially vulnerable people who have suffered life changing personal injuries.

“Any change to the current system also needs to recognise that there is not a level playing field between personal injury claimants and the insurance companies who are the defenders in those claims. Any changes which fail to recognise this problem risk widening the existing gap.”

Going a little further, and backing up their legal vested interest colleagues, the Faculty of Advocates response to the Court Fees consultation claims democracy could not function if the state did not pay for litigants to sue everyone under the sun in the same way convicted mass murderers and fraudsters empty hundreds of millions of pounds of Criminal legal aid from the public purse.

A submission from the Faculty of Advocates to the Court Fees consultation states: “The civil justice system should be funded by the state from general taxation…(it) is a cornerstone of a democratic state…(and) is vital to every citizen, whether or not he or she ever becomes a litigant,”

“No part of our democratic society could function without our civil law being maintained by the operation of our courts. There is no warrant to shift the cost of the courts entirely on to litigants when the whole of society benefits from them,”

“As a matter of principle, the civil justice system should be funded by the state, not litigants,” it said.

“The civil justice system is a cornerstone of a democratic state. It is the duty of the state to provide an accessible civil justice system…To the benefit of society at large, the law is made, declared or clarified daily by the civil courts. The civil justice system is vital to every citizen, whether or not he or she ever becomes a litigant. The benefits to society justify it being funded in full from general taxation.

“Many state-provided services are funded from general revenue, on the basis that these services benefit the whole of society, and not just those in immediate need of them. Our society accepts that, without regard to their means to pay, individuals should have access to medical care, and that every sort of person should be served by the police and emergency services.

“The Scottish Government has recognised that charging tuition fees to students limits access to higher education for many and that charging for prescriptions might deter people from seeking medical assistance. The Faculty considers that access to the courts is of equal importance.”

The Faculty believed that the proposed increases would be likely to impede access to justice, and that requiring a person to pay expensive court fees could be a breach of Article 6 of the European Convention on Human Rights, which protects access to a court.

“The funding of the civil justice system by litigants rather than the state does not protect access to justice, it hinders it.

“If even a few people are deterred from litigating a good claim or defence, that is seriously damaging justice. There may be many more than a few who are so deterred, of course,” said the Faculty.

“The system of court fees exemptions is inadequate to protect access to justice…the thresholds for exemptions are set very low.”

So, the next time you need emergency medical care, the Police, education for your children, help with homelessness or any other public service – remember not to call the well trained and dedicated people who staff these vital arteries of life.

Instead, call a lawyer and insist your taxes, your hard earned savings (if any) and dwindling assets are handed over to fund a solicitor, court clerks, a struggling Sheriff on £160K a year or a £230K a year Court of Session judge – just like the Law Society of Scotland said – because you know – lawyers have your interests and ‘access to justice’ as their priority.

GIVE CROWN OFFICE MORE MONEY – Law Society to MSPs.

In a second take on the more public cash for lawyers approach, earlier this week the Law Society of Scotland also demanded more public cash be given to the struggling Crown Office & Procurator Fiscal Service (COPFS) – who are forced to eek out an existence on a staggering £112 million a year.

In written evidence to a Scottish Parliament Justice Committee inquiry into the workings of Scotland’s “Institutionally corrupt” Crown Office, the Law Society of Scotland has said that consideration will be needed to ensure that the service provided by Crown Office and Procurator Fiscal Service (COPFS) and others is accessible and inclusive for all members of society.

In its response to an Inquiry on the role and purpose of the COPFS, the Society also stated that all participants involved in the criminal justice system have responded to a number of reforms during a time of significant financial pressure.

Ian Cruickshank, convener of the Law Society of Scotland Criminal Law Committee, said: “It’s important that the criminal justice system evolves and makes use of new technology which can help improve the service particularly when there continues to be financial pressures alongside increasing numbers of serious crime reported to the COPFS and legislative developments.

“However it is important to be aware of the potential impact on core services at a local level and on access to justice. There will need to be careful consideration on how best to ensure the service provided by the COPFS and others within the criminal justice system is accessible and inclusive to all member of society.

“Lack of resources has had an impact on the preparation and the time available for presenting criminal prosecutions in our courts. The number of prosecutions resulting in court disposals has decreased in the past five years, however the complexity of the impact of recent legislation, and the complexity of certain types of cases reported, means more preparation and court time is required.”

Previous reports on how much the Law Society of Scotland values your ‘access to justice’ and their vested interests, can be found in the archive of reports, here: Law Society of Scotland

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