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World Bar Conference: Lord Carloway – ‘luddite, paranoid & fee hungry lawyers who oppose change are wrong’ – top judge speaks on never ending reform proposals to Scotland’s Victorian justice system

Lord Carloway – fee hungry lawyers who oppose reforms are wrong. SCOTLAND’S top judge – Lord President Lord Carloway has again, publicly criticised the financial self interests of the legal profession who oppose reforms to  Scotland’s justice system – out of concern for their wallets.

In a speech at the World Bar Conference on Thursday in Edinburgh, aimed principally at the legal profession, criminal law & court reforms, Lord Carloway told his audience: “… it is readily recognised that some of the more Luddite and perhaps rather paranoid elements may inevitably regard all change as inherently wrong, designed to cut costs (specifically their fees) and to secure wrongful convictions. They are wrong, but their views must be listened to.”

The biennial event brings together the member independent bars of the International Council of Advocates and Barristers (ICAB) for seminars and social events, backed up by lavish occasions in public buildings such as the Scottish National Gallery.

This year the Faculty of Advocates hosted the World Bar Conference 2016 in Edinburgh, along with gatherings in Parliament Hall – which was revealed last year to have been secretly handed over to the Faculty in a dodgy free property handover masterminded by lawyers and approved by Scottish Ministers.

While the Lord President’s recent proposals for justice reforms and faster access to justice for Scots court users may be seen as welcome, the fact is – year in year out, legal figures from Scotland’s multi billion pound legal industry claim change will come, access to justice will be faster, fees will be reduced, regulation will improve, the courts will be more accountable. None of which is ever achieved.

In short, we have heard it all before. Just like ridiculous crime statistics, supposed cuts in the legal aid budget and stage managed publications of annual reports to coincide with a budget announcement. Public Relations and spin with the repeat button pressed down.

However, this is the second time this year, Lord Carloway – who succeeded Lord Brian Gill to the role of Lord President & Lord Justice Clerk – has hit out at ‘obstructive’ lawyers and those who oppose change..

In a speech on digital justice and reforming Scotland’s “Victorian” courts addressed to the Law Society of Scotland’s Council in late January 2016, Carloway reminded his audience of legal figures: “Much of this will be achieved in our professional lives, provided that we do not take a cantankerous and obstructive approach to it.”

And, during Lord Carloway’s speech to the Commonwealth Association of Law Reform Agencies Biennial Conference held in April 2015 – Carloway did not mince his words, accusing lawyers & critics of having a financial interest in retaining the centuries old injustice safeguard of corroboration.

Reacting to opposition from the legal profession – opposition which was backed by a number of judges, Lord Carloway said: “Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest.”

Carloway is keenly aware that powerful elements within the legal profession and the Law Society of Scotland oppose a faster and wider system of access to justice for Scots, on the grounds such reforms may impact on the profits of law firms & sizeable claims on the annual £150 million plus Scottish Legal Aid budget.

Since the banking & financial crash of 2008, a staggering £1.2 billion pounds has been handed out to Scottish law firms, much of which goes on criminal legal aid.

Yet despite taking billions  in public cash, solicitors, led by bosses at the Law Society of Scotland have staged strikes outside the Scottish Parliament & court buildings demanding legal aid cuts be reversed.

Lord Carloway speech to World Bar Conference 2016:

Lord Carloway’s opening lines refer to how the legal profession & courts are supposed to represent the interests of clients & justice: “The courts play the central role in the administration of justice. Their function is to promote observance of the law through the process of resolving civil disputes and determining criminal guilt. The legal profession plays its own important role. Members of both branches, solicitor and advocate (or barrister), represent the interests of the system’s users. They do more; specifically at the level of advocate, by assisting the court in finding the true facts and applying the correct law, albeit hopefully in the client’s favour. The advocate owes duties to the court and to the public, over and above those to fellow members of his profession and to the client.”

“In this broad sense, the legal profession is the muscle and ligament which makes the skeleton of the law in our democracy move.”

“Both branches of the profession remain largely self-regulating. Each is responsible, albeit in some sphere under delegated authority from the court, for training, standards, and very occasionally, the discipline of its members. The court retains a keen interest in the effective representation of both those who rely on the system to vindicate their rights and those in need of protection from state action. It must ensure that parties are adequately represented. In Scotland, this obligation is enshrined not only within the concept of a fair trial under Article 6 of the European Convention on Human Rights but also in the much older and more established common law principles of fairness in court proceedings generally. What amounts to adequate representation may vary from case to case, but it is ultimately a matter for the court to determine. It must do so to ensure that there is access to justice for all parties. After all, if someone does not have effective representation, justice cannot be seen to be done.”

On access to justice in the modern age – Lord Carloway said: “Advances in technology mean that the courts operate in a world which would be unrecognisable to those who lived 100 years ago and, in many respects, unfamiliar to those practising 14 years ago when the first of these conferences was held. Last year saw the implementation of the most comprehensive reform of the practices of the Scottish courts since the early Victorian age. The implementation of Lord Gill’s Review has had, and will continue to have, a very significant impact on the level at which both civil and criminal cases are decided. Court procedure is closely linked to access to justice: it is the link between evidence, as proof of fact, and correct decisions based on a correct application of the law.”

“Advances in technology influence users’ expectations. On a fundamental level, the opportunities presented by modern technology could, to use the words of Lady Dorrian …”make justice more accessible to a wider number of people, to make evidence more reliable and more readily available, and to make processes and procedures more efficient”. This is something which is being considered on a wider basis as part of the Digital Justice Strategy of the Scottish Government.It is a recognition of the fact that the court system should keep pace with developments and change in the society which it is intended to serve.”

Concluding his speech to the World Bar Conference, Lord Carloway said: “What is the role of the legal profession in all of this? The profession is a vital part of the machinery of justice. The court relies on both branches of the profession to perform their functions as representatives of the parties. Without this input, the risk that the court will fall into error is greatly increased.”

“The challenges posed by the development of the traditional roles of the profession, models of funding, competing interests, and modern technology are all ones which the profession, as well as the court system, require to meet.”

Sounds Familiar? – Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:

The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.

The Civil Courts Review can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15

In a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here Lord Gill 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.”

Previous articles on the Civil Courts Review and reforms of Scotland’s antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.

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HI TECH, M’LORD: Lord President Lord Carloway sets out vision for digital courts and redesign of Scotland’s “Victorian” justice system for the 21st Century

Lord Carloway – Scots law to be more digital than Victorian. SCOTLAND’S top judge, Lord President Lord Carloway has set out his plans for a technologically advanced digital view of justice in Scotland.

Addressing the Law Society of Scotland’s Council late last week, Friday 29 January 2016, the Lord President spoke of his vision for courtrooms ‘fit for the 21st century – echoing earlier calls for reform in 2009 by his predecessor Lord Brian Gill (73) – who branded Scotland’s justice system as “Victorian” and unfit for purpose.

Speaking in his introduction, Lord Carloway said: “Over the next 5 years plans will be developed which will see the court room, and its ancillary offices, redesigned in light of modern ideas and technology.  It will be changed from its current Victorian form into something fit for the 21st century.  The direction of travel may differ between the civil and criminal processes, but there will be themes common to both.  In all of this, a particularly important factor is your, the practitioner’s, attitude to the proposed modernisation; the view that you have about the efficiency and effectiveness of the current systems.”

Lord Carloway continued: “Do you see the civil courts as modern institutions which adequately deal with the disputes commonly arising in today’s Scotland?  Do you consider that the criminal courts are producing fair trials which properly balance the rights of the accused with those of others?  If the answer to each question is “well maybe not entirely”, the next question is what is to be done about it.”

An earlier attempt to reform Scotland’s antiquated civil justice system – Lord Brian Gill’s Scottish Civil Courts Review, ended in watered down ‘tinkering around the edges’ after Gill’s initial proposals had been put through the Taylor Review and then further diluted by the legal profession & Scottish Government.

Coincidentally, on the same day Lord Carloway addressed the Law Society’s Council with his plans to shake up Scotland’s justice system, three appeal judges dealt the new Lord President a blow on a headline rape trial, heard by Lord Carloway in 2014.

Lord Eassie, sitting with Lady Clark of Calton and Lady Smith, issued an opinion in the high profile case, quashing the convictions of Andrew Clark – who was jailed for eight years for raping two women and sexually abusing two others in Glasgow, Clydebank and Dumbarton between 2001 and 2012

In the appeal opinion, available on the Scottish Courts & Tribunals website HERE, the appeal judges stated Lord Carloway had misdirected the jury in the rape trial, finding “.. We consider that counsel for the appellant was correct in stating that this instruction to the jury did not constitute an entirely correct statement of the law.  While a witness may be cross‑examined as to credit in respect of a prior inconsistent statement, we do not consider that it is admissible to lead evidence of a prior extra judicial consistent statement or statements in order to bolster the witness’ evidence.”

Lord Eassie wrote: “In these circumstances we have come to the conclusion that the jury were misdirected on a matter which was central to the position of the defence at trial and that we are unable to say that no miscarriage of justice may have occurred.” “We shall therefore allow the appeal against conviction.”

Lord Eassie wrote that he and his fellow judges now wanted to be addressed by lawyers about what Clark’s new sentence should be.

Now, Lord Carloway – who served as Lord Justice Clerk under previous Lord President Lord Gill – is to be asked to give evidence to the Scottish Parliament’s Public Petitions Committee in connection with three year probe on proposals to require judges to register their interests, in which a publicly available register will contain information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The proposal to require judges to declare their interests enjoys cross party support, and is widely backed by MSPs who debated the proposals in the Scottish Parliament’s main chamber on 9 October 2014 – reported in full with video footage of MSPs and Scottish Ministers here: Debating the Judges.

Lord Carloway’s speech on digital justice and reforming Scotland’s “Victorian” courts is reproduced below, in full:

Over the next 5 years plans will be developed which will see the court room, and its ancillary offices, redesigned in light of modern ideas and technology.  It will be changed from its current Victorian form into something fit for the 21st century.  The direction of travel may differ between the civil and criminal processes, but there will be themes common to both.  In all of this, a particularly important factor is your, the practitioner’s, attitude to the proposed modernisation; the view that you have about the efficiency and effectiveness of the current systems.

Do you see the civil courts as modern institutions which adequately deal with the disputes commonly arising in today’s Scotland?  Do you consider that the criminal courts are producing fair trials which properly balance the rights of the accused with those of others?  If the answer to each question is “well maybe not entirely”, the next question is what is to be done about it.

I have a number of ideas.  These may occasionally be expressions of my own personal utopia, but generally they are conclusions based upon considered, albeit inevitably incomplete, research by others.  Many of the central changes require primary legislation.  Their introduction will not therefore be my decision.  All I can do is recommend. The proposals will then go forward for deliberation in the public forum and democratic determination.  I remain, however, convinced of their ultimate utility.

Civil Procedure: I have said elsewhere that “Court reform is never complete.  Our courts must be ready to adapt and respond to progressions and innovations in society … with a modern outlook but … reflecting upon historical experience”[1].  The last major reforms before the Gill Review were in the first quarter of the 19th century.  We now need to capture the benefits which 200 years of technological advances have given us.  We certainly have not done so yet.

Over a year ago, Lady Dorrian cited Ofcom research which found that we are now in an era in which we spend more time using technology devices than sleeping[2].  She observed:

“If people and businesses communicate instantly by email, Skype or Facebook, they will expect public services to do likewise.  They will increasingly fail to understand, or have sympathy with, any system that still relies on extensive documentation, sent by post, and by the requirement to appear in person for the handling of routine matters”.

The Gill Report has a chapter devoted to the use of IT in the civil courts.  It cites the Government’s policy commitment to increase the use of IT in the public sector[3].  I too have previously called for “clear sky thinking” on the use of IT in Scottish courts in the interests of justice, given the particular advances in the last twenty years or so[4].  We now need to make concrete progress in the harnessing of new devices to reconfigure our practices and procedures in a radical way.

The electronic process: The Gill report noted that a paperless litigation system had been all but achieved in several jurisdictions[5]. Such systems typically produce a number of advantages: the facility to lodge documents electronically; the supersession of paper processes with electronic document management systems; the introduction of electronic case files incorporating legal databases and other research tools; the use of routine correspondence with the court by email; the conduct of procedural hearings by video conference; the taking of evidence by video link; the display of documents and other materials on screen; the digital recording of oral evidence; and the electronic issue of court orders[6].   In due course, the one which deserves most attention, and which may be the most challenging, is the digital recording of testimony.

Drawing upon the experiences of other jurisdictions, the Gill report identified a number of significant advantages of using this technology, including: reduced waiting and travelling time; the overcoming of the tyranny of distance[7]; a stricter adherence to time estimates and hearing start times; the involvement of principal solicitors with full instructions; reduction of expense; and generally increased accessibility of the civil justice system, particularly for private individuals, firms and smaller corporate litigants[8].

In Scotland, there was widespread take up some time ago, in commercial causes at Glasgow Sheriff Court, of case management conferences by telephone[9], The Inner House put a bit of a damper on this in couple of cases some seven years ago[10]. This caused some retrenchment, but the idea is still a good one. The desirability of conducting procedural hearings by conference call, preferably on video, will depend upon the facts and circumstances of each case.  As the European Court of Human Rights has explained[11], a distinction can be drawn between these cases where the hearing involves a decision on the merits, and procedural hearings, such as case management diets.  The Convention right to a public hearing does not carry with it a requirement that every procedural hearing needs to be in open court. Procedural hearings do not involve the determination of civil rights or obligations[12].  There ought to be no difficulty in principle with procedural hearings being conducted by means of telephone or video conferencing, provided certain safeguards are in place.

The electronic process for use in the Court of Session and the sheriff courts is in the late stages of development by the Scottish Courts and Tribunal Service.  It may be ready for piloting as early as the Summer.  It is envisaged that this system will have all the advantages envisaged in the Gill report.  In time, it is anticipated that the system will be expanded to facilitate the taking and hearing of evidence by recorded video.

Modes of Proof: Our system of proof is founded upon the primacy of oral testimony, that is, an account given upon oath from the witnesses in court.  The apparent reason is, as the editor of Dickson put it at the end of the 19th century “that an examination and cross-examination in open Court, under the solemn sanction of an oath, are the best means of securing truth and detecting falsehood”[13].  Certainly, the perceived significance of a witness answering for his or her testimony at the Great Day of Judgment, as the original form of oath prescribed[14], was considerable in these God fearing days.

This mode of inquiry, or truth finding, is inherited from the Victorian age and earlier, when there was a need for litigants, their representatives and witnesses, to appear before the courts at a specific cited time and place.  Those considerations are losing relevance today, when information can be assembled and presented in recorded form using modern technology.  Yet, the rules on the admissibility of evidence, other than the formal removal of the prohibition on hearsay, remain substantially similar to those set out in 1887 by Dickson[15].  Many forms of what should be admissible evidence of fact today – video recordings of witness accounts, for example – would have been beyond the then realms of contemplation.  Although it may be competent to use these as evidence, that does not routinely occur. In our age of technology, we must seize the moment and hold that, in the future, evidence might be presented to the court in a quite different, more advanced manner, than the appearance of the witness at court.

Today, what a person says can be recorded electronically and accurately at any time in audio and video format.  Events can be caught, contemporaneously, on CCTV or on portable devices.  In the ascertainment of fact, the question then is: which is more likely to be true: a record of an event as caught on camera and a video recorded statement made by a witness in the minutes or hours immediately following an event; or the oral testimony of a witness at a proof months or perhaps years later?  Why should it not be the norm, employing a procedure akin to a commission[16], for all evidence to be taken, in advance, in the form of a video recordings of witnesses’ accounts or of the relevant event or thing?  Our system has long recognised the competency of taking the evidence of a witness, which is in danger of being lost, to lie in retentis or the evidence of a witness who will be unavailable for the proof diet[17].  Provided that there is suitable oversight of the procedure and the witness can be, if judicially deemed necessary, cross-examined, this material should in principle be admissible as the primary method of proof of fact[18].

The task of evaluating credibility and reliability would, where required, remain with the judge.   If the final hearing proceeds, the video recordings can be submitted to the judge who will have examined all of the evidence in advance.  Excepting cases with special features, the diet would be restricted to oral submissions.  The judge, having had the opportunity to digest the evidence in advance, would be in a better, more informed position to engage with these submissions.  The diet itself would be much shorter, reducing expense and waiting times in other cases, thereby increasing the general accessibility of the civil courts. 

This process would offer the additional benefit that witnesses could provide their testimony at a time and place convenient to themselves, as well as the parties’ representatives, and the court.  Once the evidence has been heard and recorded, parties would have an opportunity to consider the advantages or otherwise of proceeding any further.  In this way, the reform might serve a dual function as a dispute resolution procedure whereby parties could evaluate the merits of their respective cases at a much earlier stage, without incurring the risk and expense of proceeding to the conventional final diet.

Article 6 confers, in civil cases, the right to a fair trial.  There is no breach of that essential guarantee inherent in these proposals.  There would be sufficient safeguards.  Even in criminal matters, the European Court has held that Article 6(3)(d), which contains the accused’s right to examine or have examined witnesses against him, is not absolute.  It does not entail a right to cross-examine every, or indeed, any witness in the conventional domestic sense in open court.[19]  There must, of course, be an opportunity to pose questions to a party or a witness, but that is the extent of the Convention entitlement.  The proposed new procedure would need to guarantee an opportunity to ask questions of a witness and, where appropriate, use cross examination as a forensic technique.

It is unlikely that the civil justice system, or the parties, can afford to have the luxury of the long proof, other than in the most exceptional of circumstances.  Restrictions in oral examination and cross-examination, along the chess game model, may have to be considered in the not too distant future.  The days of the lengthy proof may soon be over.  Such diets are time consuming, expensive and unnecessary.  They do not operate in the matter best suited to the ascertainment of truth.  They are not consistent with modern ideas of justice.

Appropriate level: Significant structural changes to our civil court system are underway.  The essential consideration is the promotion of justice, more particularly access to justice, through the quality and efficiency of our courts.  The objective is “rationalisation”; improved organisation, not only of the court structure, but also in the allocation of cases to be heard.  Cases must be given, but given only, the appropriate level of scrutiny.  They must be determined in accordance with our principles of law and justice but, in the promotion of justice for all, they must also be determined expeditiously and affordably.

Suffice it to say, the devolution of a large chunk of civil first instance business from the Court of Session to the Sheriff Courts by virtue of the increased privative limit is the headline reform, or was the main concern of the Bar and certain agents based in Edinburgh.  It may promote local justice, but the new All Scotland Sheriff Personal Injuries Court is likely to process most of the devolved work

One consequence will be that the Court of Session will be appropriately placed to function, as it should, as the supreme civil court in Scotland.  An increasing volume of public, and public interest litigation, important and developing areas of jurisprudence, is anticipated, especially as more reserved matters are devolved to Holyrood.  It is important that the Court of Session is in a position to deal with the new business promptly and effectively.   Although it is beyond the scope of this address, the affordability of litigation is a crucial consideration underlying the reforms.  Increased efficiency and cost-effectiveness will be achieved from the allocation to, and hearing of cases before, courts commensurate with their nature and subject-matter.

Leave provisions: The right of appeal to the Sheriff Principal against all final judgments and those involving for example interim interdicts and decrees, and that traditional staple, the refusal of the reponing note, is preserved[20].  Otherwise, leave from the sheriff is required to take matters further[21].  Whether an appeal will be heard before one or three Appeal Sheriffs is for determination by the Sheriff Appeal Court[22], as is whether it may be leap frogged, where an appeal raises a complex or novel point of law[23]. 

Appeals against a decision constituting a final judgment to the Court of Session from the Sheriff Appeal Court may be taken only with leave granted by the Sheriff Appeal Court, which failing the Court of Session, but only if the appeal raises an important point of principle or practice or there is some other compelling reason for the Court of Session to hear the appeal[24].  Thus, appeals from decisions of fact or discretionary determinations taken in the sheriff court are now unlikely to reach the Inner House.  Those that do must have a wider procedural or practical significance.  This test is intended to cause a significant drop in the number of unmeritorious appeals reaching the Divisions, often presented without the benefit of professional legal advice.

The automatic right of appeal from the Court of Session to the United Kingdom Supreme Court has ceased to exist.  The substitution of the new sections 40 and 40A of the Court of Session Act 1988[25] brings Scotland into line with the other UK legal systems in civil appeals at least in so far as final judgments are concerned.  Leave to appeal must be sought from the Inner House.  Permission will be granted only if “the appeal raises an arguable point of law of general importance which ought to be considered by the Supreme Court”[26].  Such a test is already familiar from recent cases, notably Lord Reed’s dictum in Uprichard v Scottish Ministers[27].  The timing of applications continues to be relevant.[28]

Criminal Law: I turn briefly to criminal law; briefly because, first, I have largely covered most of what I want to say in this field in relation to the use of pre-recorded testimony; secondly, I have spoken on this topic frequently; and, thirdly, very shortly, I hope that the Scottish Courts and Tribunal Service will publish its Evidence and Procedure Report; a culmination of an examination of the solemn and summary criminal systems with conclusions on the best way forward.  This is not specifically designed to save money. The proposals have not been costed.  It is an attempt to improve our fundamental way in which we ascertain fact, or, more accurately, truth, in criminal trials.

The problems within the summary criminal system were highlighted recently in the Audit Scotland Report, with its pointed statistics on the number of prosecutions mounted, trials fixed and trials conducted. The pace of change in society threatens to leave criminal procedure behind.  There requires to be a significant re-design of summary criminal procedure to take full advantage of the new technologies which are available. Along the lines which I have already mentioned in the civil context, work must be undertaken to develop the detailed requirements of a Digital Evidence Vault which can store and manage evidence and other information relevant to individual criminal cases.  The numbers of witnesses who require to attend court must be radically reduced.  There requires to be a more streamlined, digitally enabled justice system which enables cases to be managed judicially and administratively prior to trial so that personal appearances of accused and representatives are reduced to a minimum. Pleas of guilty should be capable of being submitted easily, at any time, on-line. Trials must only be fixed when the parties are ready to engage in that process.

Advanced systems must be introduced to deal properly, that is fairly, with cases involving children and vulnerable witnesses. It must be presumed that in such cases the evidence in chief and cross must be in pre-trial recorded form The court has already recommended a system whereby, in cases where there has been a Joint Investigative Interview, there ought to facilities to hold any cross-examination at any point after the service of the petition or complaint. Improvements in the training of those conducting JIIs must be made.  Advocates or solicitors engaged in the examination or cross-examination of children must prove that they have the proper skills to do so. Their work must be closely supervised by the court.

The Bowen Reforms, which introduce the High Court system of procedure into the sheriff courts, notably in connection with the fixing of trials, must be properly and effectively implemented. As I have recently made clear in the Practice Note, the First Diet in solemn cases must normally be regarded as the end point in preparing for a case and not its starting gun. The courts must deal with all preliminary points in advance of trial at diets having sufficient allocated time. The jury trial diet must be regarded as a precious resource, not to be interfered with.

Conclusion: Much of this will be achieved in our professional lives, provided that we do not take a cantankerous and obstructive approach to it. Ultimately, it is much better that we have a legal profession that enjoys working in a civil or criminal justice system which works fairly and efficiently; not one which may be seen by some as failing in certain areas. It is my hope that you will all engage in this process so we can have a system in which, when the questions I asked at the beginning of this talk are asked, we can say “well, just about”.

Lord Carloway, Lord President, 29 January 2016

Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:

The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.

The Civil Courts Review can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15

In a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here Lord Gill 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.”

Previous articles on the Civil Courts Review and reforms of Scotland’s antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.

 

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SUDDEN EXIT, M’LORD: Documents reveal 30 day notice of top judge to quit post of Lord President – after battle with Parliament on judicial transparency & register of judges’ interests

I’m off in 30 days – top judge. THE EVENTS surrounding the sudden retirement of Scotland’s top judge Lord President Lord Brian Gill remain as shrouded in mystery as some court reports – as documents released by the Scottish Government reveal the short notice Brian Gill gave to Scotland’s First Minister – of his intention to leave office thirty days later on 31 May 2015.

Gill unexpectedly stood down from the role as head of Scotland’s judiciary earlier this year after waging  a bitter two year battle with the Scottish Parliament over plans to create a register of interests for judges.

The documents, released by the Scottish Government in response to a Freedom of Information request also reveal short exchanges between Stephen Humphreys of the Judicial Office & staff of the Scottish Government’s justice directorate – who appear to have been caught unaware by the sudden announcement.

In the Lord President’s letter to Scotland’s First Minister Nicola Sturgeon, Brian Gill (73) thanked members of the Scottish Government past & present for ‘their support’ during his tenure of office – support which included Scottish Ministers attempts to undermine and block a Scottish Parliamentary investigation into the judiciary’s secretive links to big business, financial interests and other vested interests.

In response, First Minister Nicola Sturgeon – who personally intervened earlier this year in a bid to thwart a register of judicial interests going ahead, praised Lord Gill for his service to the court.

The First Minister also wrote of Lord Gill’s “legacy to the justice system in Scotland” – referring to his work on the Scottish Civil Courts Review – sought to change some of the antiquated structures of Scotland’s expensive, closed shop and out of reach civil courts.

Just prior to the launch of the report on civil justice in Scotland – which took two years to complete, Lord Brian Gill condemned the civil justice system as “Victorian” and “unfit for purpose”

In a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here Lord Gill 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.”

In reality, much of Lord Gill’s recommendations contained in the Civil Courts Review were watered down by the Scottish Government who commissioned the Taylor Review – carried out at the insistence of the legal establishment – who feared giving the public easier and cheaper access to court would impact on the dwindling profits of Scots law firms.

The First Minister ends her letter by wishing Lord Gill the very best for his retirement.

However the former top judge’s retirement appears to have been short lived after it came to light Lord Brian Gill is now sitting again as a judge on the UK Supreme Court, based in London.

From Lord President Lord Gill to First Minister Nicola Sturgeon:

I have today sent you formal notice of my retirement from the offices of Lord President and Lord Justice General.

I write to thank you and your predecessor, the Cabinet Secretary for Justice and his predecessor, and the civil servants in your various departments for all the support and encouragement that I have received during my tenure of office.

It has been one of the great privileges of my life to serve in the offices that I have held.

I am pleased to tell you that the work of the Superior Courts, civil and criminal, and of my Private Office is up to date. I have every confidence that the Superior Courts and my Private Office will continue to function efficiently while my successor is being recruited.

In response, the First Minister thanked the outgoing Lord President for service to the courts and tenure as top judge:

Letter from First Minister Nicola Sturgeon to Lord Gill:

Thank you for your letter of 1 May 2015, together with your formal letter informing me of your intention to retire from the offices of Lord President and Lord Justice General General as of 31 May 2015.

I am enormously grateful for the service you have given as a judge in Scotland since 1994 and, in particular, for your service in the offices of the Lord President and Lord Justice General over these past three years.

Your legacy to the justice system in Scotland will continue to endure in areas but I would highlight your proposals for the far-reaching reform of the civil courts system in Scotland that will result in a more modern and efficient court system fit for the 21st Century.

Once again, I am very grateful for your distinguished service and, may I take this opportunity to wish you and Lady Gill all the very best for your retirement

JUDICIAL TRANSPARENCY PETITION & SCOTTISH MINISTERS:

The judicial transparency petition – opposed by Scottish Ministers & Lord Gill – nevertheless enjoys cross party support. The petition has been the subject of a two year investigation by Holyrood and proposes the creation of a publicly available register of judicial interests containing information on judges backgrounds, their personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Scotland’s first ever Judicial Complaints Reviewer (JCR) – Moi Ali gave the judicial transparency proposal her full backing. During the evidence session held at Holyrood in September 2013 – Moi Ali provided a first hand, honest and highly detailed account of the workings of Scotland’s judiciary and lack of judicial transparency & accountability.

Current JCR Gillian Thompson OBE gave further support for the plan to create a register of interests for judges during an evidence session at Holyrood in June 2015.

A full parliamentary debate on the question of creating a register of judicial interests was reported along with  video footage & the official record, here: Debating the Judges & here : Top judge & Scottish Government told to rethink refusal on declarations of judges as Holyrood MSPs support calls to create a register of judicial interests

Last Friday, Justice Diary revealed Lord Brian Gill has since come out of retirement and now sits on the supplementary panel of judges at the London based UK Supreme Court.

 

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UNCIVIL LAW: Watered down Civil Court reforms translate to more judges & specialist courts to satisfy business model of ‘lawyer only’ access to Scotland’s “Victorian” Civil Justice system

New court reforms claim justice will go faster. SCOTLAND’s embattled top judge, Lord President Lord Brian Gill has welcomed the implementation of the Courts Reform (Scotland) Act 2014 – legislation aimed at reforming Scotland’s hugely expensive and out of touch civil justice system which features watered down proposals Lord Gill originally made over five years ago in 2009.

Among the proposed changes will see an increase the value limit of cases heard in the sheriff court from £5,000 to £100,000, and the swelling of Scotland’s already burgeoning judicial ranks with the introduction of summary sheriffs to deal with some types of criminal and civil cases in the sheriff courts and the establishing of a Sheriff Appeal Court and a specialist personal injury court of national jurisdiction within the sheriff court.

The legislative reforms – mostly designed to benefit the legal profession instead of fee paying clients & the wider public, come after Lord Gill and his team conducted a two year review of Scots Civil justice which began in 2007. Two years later in 2009, Gill – then Lord Justice Clerk – published his report and rounded on the stagnation of justice, branding Scotland’s courts as “Victorian” and unfit for purpose.

Gill (72) – who is fighting a bitter two year battle with the Scottish Parliament in an attempt to avoid members of the judiciary having to declare their interests such as sizeable, secret wealth, multi million pound property portfolios, links to big business, criminal records and offshore tax avoidance – issued a statement claiming the announced reforms, which only came about after an additional review of Gill’s original recommendations “will provide Scotland with a civil justice system fit for the 21st century”.

Courts Reform (Scotland) Act 2014. The ‘reforms’ – which claim to speed up justice also target non lawyer and much cheaper McKenzie Friends, otherwise known as “Lay Representatives” in Scotland’s courts. The move, seen as a protectionist measure by the Scottish Government & judiciary to discourage people from using lay representatives, makes a MacKenzie Friend jointly liable with the person they are representing for all costs in a legal case if they lose.

Among other restrictions & sanctions placed on lay representatives, which do not apply to members of the legal profession, Section 98 0f the act states: Lay representation: supplementary provision (2) Provision under subsection (1) may include, in particular, provision— (g)  enabling the court, in awarding expenses against a non-natural person in any case to find a lay representative jointly and severally liable for the expenses.

The Lord President also confirmed his intention to appoint Sheriff Principal Mhairi Stephen as the President and Sheriff Principal Craig Scott as Vice President of the new Sheriff Appeal Court.

Lord Gill said: “These reforms will safeguard the integrity of Scots law by creating an efficient court structure. Every case will be heard by the appropriate court. The system will be accessible and cost effective for the litigant. My colleagues and I in the Review Team are particularly grateful to the Scottish Parliament for having passed into law almost all of our recommendations.”

Lord Gill added: “The process of implementation will now begin. I intend to appoint Sheriff Principal Stephen as the President, and Sheriff Principal Scott as Vice President, when the court comes into being.”

Justice Secretary, Kenny MacAskill who has remained a steadfast advocate of the legal profession, said: “I am delighted that this Government’s Court Reform Bill has become enshrined in law and has today received Royal Assent.Our courts have remained relatively unchanged for decades but this new legislation will bring about the most important change for Scottish courts for more than a generation. This is a hugely important step forward in making Scotland’s civil justice system more accessible, affordable and efficient for those people who need to resolve civil disputes.”

MacAskill continued: “We have listened to and accepted concerns from some stakeholders and made amendments to ensure that people get access to the most appropriate legal representation in their cases. I am confident that the reformed courts structure, including the new national specialist personal injury court, will ensure that cases can be raised and dealt with quickly and effectively and there is easier and more affordable access to justice.We look forward to working with our partners across the justice system to implement these reforms.”

However, despite claims the reforms will make justice faster, legal insiders and observers to Scotland’s courts expect little to change in what are the most adversarial, most inaccessible and most expensive courts & legal system in the entire European Union.

Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:

The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, now Lord President Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.

The Civil Courts Review can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15

Gill, giving a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, 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.”

Previous articles on the Civil Courts Review and reforms of Scotland’s antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.

 

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Top judge Lord Gill tells lawyers to ‘take opportunity’, says Courts Reform (Scotland) Bill will not reduce access to justice in speech to Law Society vested interests

Top judge reassures lawyers court reforms will not dent their profits or interests. IN a speech to multiple vested interests attending the Law Society of Scotland’s recent Annual General Meeting, Scotland’s top judge, the Lord President Lord Brian Gill has defended proposals contained in the Scottish Government’s Courts Reform (Scotland) Bill, claiming the reforms, based on recommendations of the 2009 Civil Courts Review authored by Gill himself, will not reduce access to justice as some lawyers claim.

The judge went on to tell the audience of those who make billions of pounds out of Scotland’s courts & clients each year that the reforms would instead offer opportunities to the solicitors’ profession.

Lord Gill, who has previously addressed the Law Society’s AGM in his capacity as Lord Justice Clerk, most notably when he criticised Scotland’s civil justice system as being unfit for purpose, and “Victorian” in its workings, was speaking as the first Lord President to address the AGM.

The speech “Looking over the horizon – life after the Courts Reform Bill” was intended to allay widespread fears within legal circles that lawyers fees, income and law firm’s profits will be hit by reforms to Scotland’s civil courts which include transferring cases of £150,000 or less to the Sheriff courts, where legal fees are significantly less compared with charges levied by solicitors for attending Scotland’s highest court, the Court of Session based in Edinburgh.

Speaking on the “private jurisdiction of the Court of Session”, Lord Gill said: “It has been recognised from the earliest  days of the  Review, that not all low value cases are straightforward. There can be many complicated issues  in any type of case, regardless of value. It is foolish to suggest that  all low value cases are straightforward. It is foolish likewise to suggest that all claims raised in the Court of Session involved complicated matters of law and procedure. Experience shows  that the  majority  of the low value claims  in the Court of Session  are  straightforward. In any event, the Bill makes  provision for cases to be remitted to the Court of Session in appropriate circumstances (clause 88).”

“Some respondents to the Bill’s consultation have raised concerns that the remit test is too restrictive. In my opinion, it is essential that the remit provisions are necessarily robust.No one wants to see the daily  sheriff  court rolls  or  those of  the Court of Session  clogged with motion after motion  for remits. That  would seriously undermine the principles of the Bill.”

“The increase in the privative jurisdiction and in time, the introduction of the specialist personal injury court should ensure that cases find their appropriate level in the court system. Expenses will be lower for the parties. Cases shall be dealt with more expeditiously than at present. The specialist sheriffs, in partnership with the profession, will  develop a body of specialist and authoritative case law.  A greater emphasis on case management and improved use of IT will  be introduced by way of court rules and  will  promote  a pro-active, front loaded litigation  that reduces the time spent waiting in court for short straightforward hearings.  At the same time efficiencies  will  be improved in the Court of Session.”

“The Court of Session  will continue to be the forum for high value  and  complex cases. Our hope is that these cases can be dealt with greater expediency as a result of the reforms,  so that cancellations of hearings  because of  lack of judges and/or court time  will be a thing of the past.”

“On the subject of the ‘development of Scots law’, Lord Gill claimed: “I do not expect that there shall be any reduction on the quality of decision making or any adverse effect on the development of Scots law.  It is to the credit of our shrieval bench that  the  great  majority of cases do not result  in  an  appeal to the higher courts.”

“In the main, the quality of decision making is good, and  is complemented by the Judicial Institute and the excellent  training  and support that  it  provides. The reforms as a whole will bring significant benefits to the quality of decision making in the sheriff courts.  The  introduction of the new tier of ‘summary sheriffs’  will  ensure that  summary crime, housing and low value financial claims are dealt with expeditiously at an appropriate level in the court system.”

“The summary sheriff will possess the same level of qualification and experience as sheriffs proper. The  new tier  will  remove a significant amount of business  from the daily work of the sheriffs, allowing them more time to concentrate on the more difficult cases.”

“The Sheriff Appeal Court will provide increased scrutiny in the decision-making and writing process  than under the present system where the  sheriff principal  sits  alone. It will have a greater understanding and insight into the daily workings of the sheriff court than is enjoyed by the Inner House.”

“When one views these aspects of the reforms together with the fact that at present, many  civil  appeals go no further than the  sheriff  principal, it is hoped that few  appeals  will  have  to  be taken from the Sheriff Appeal Court.”

“What opportunity does it present? It gives to every solicitor in Scotland the opportunity to develop skill in appellate advocacy and to develop an expertise that has hitherto been seen as the exclusive preserve of the Bar.”

On the “Right to Counsel”, Lord Gill said: “I accept that these changes shall impinge on the types of cases in which  counsel may be instructed  without  their fees requiring  sanction from the court. I do not accept however, that the implementation of the Bill  will  remove access to justice.”

“Those pursuers who, at present, choose to litigate in the sheriff court as opposed to the Court of Session have received no lesser  form of  justice. I do not accept that it is a requirement for  ‘access to justice’  that litigants are provided with the choice of litigating in a more expensive forum with the requirement that  counsel has to be instructed to represent their interests. Why?  Firstly, access to justice is inevitably and inextricably linked with affordability.”

Lord Mackay of Clashfern recognised that in address that he made to the Royal Society of Arts on that very subject: “There is no doubt that under our present [justice] system cost is a major barrier to using the law. Reducing costs should not be seen as an end in itself nor as an inevitability leading to a second-rate system of justice. Cost effectiveness pursued  in  the right way will lead to a more affordable system  and to my mind is the only logical way to expect access to justice to be improved. I would like to emphasise that message. Affordability is the key to improved access to justice. Affordability to the taxpayer and to the individual.”

The  changes proposed seek to make the system more affordable for the client consumer.  That improves access to justice. Secondly, litigants are not being denied access to the courts, nor representation.

In conclusion, Lord Gill stated to the audience of solicitors: “The  prospects, in my opinion,  should make us optimistic. Our  civil justice system will be  fit  to serve  the  modern society  in Scotland that the previous generation of lawyers would not have recognised  and  will  promote the fundamental principles that I mentioned at the outset.    I am certain that the Law Society and its members shall not only survive the  legislation,  but shall adapt  to it in its  commitment  to excellence.  The reforms provide an opportunity for the profession to diversify, renew itself and to improve upon the  work already undertaken in the  Review. The opportunity is there for the taking.  I urge you all to embrace it.”

There was no mention in Lord Gill’s speech of transparency regarding judicial interests, an issue currently under consideration at the Scottish Parliament by way of Petition PE1458: Register of Interests for members of Scotland’s judiciary.

In terms of the lack of a register of judicial interests, litigants in Scotland’s courts currently have no basis to establish whether the judge hearing their case or even a judge involved in a criminal case, should be asked to recuse themselves or not due to conflicts of interest or financial and other interests that members of the judiciary are not keen on declaring openly. Therefore reforms of the courts as currently proposed do not go far enough to allow the public to determine whether cases are being heard fairly or not.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, and video footage of debates at the Scottish Parliament’s Public Petitions Committee deliberations on Petition PE1458: Register of Interests for members of Scotland’s judiciary can be found here : A Register of Interests for Scotland’s Judiciary

 

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Seven years on, Lord Gill’s Civil courts reforms head to Parliament as Scots face prospect of little change on access to poor quality, expensive & selective civil justice system

Victorian and late, Civil Courts reform will change little in Scots justice system. SEVEN YEARS after Lord President Lord Brian Gill (then Lord Justice Clerk) was commissioned in 2007 to study Scotland’s expensive closed shop civil justice system which culminated in the unremarkable 2009 Civil Courts Review conclusion that ‘things had to change’, the Scottish Government have today finally announced plans to bring the Courts Reform (Scotland) Bill to the Scottish Parliament for consideration by MSPs later this year.

The much heralded Gill Civil Courts Review published in 2009 which can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15 has so far impacted little on how Scots are able to access justice in the Scottish courts. At the time, Lord Gill branded Scotland’s civil justice as “Victorian” and “failing society”. Little has changed from those criticisms some seven years on.

However, many of the reforms proposed by Lord Gill in 2009 which could have helped the man on the street gain a hearing in court have unsurprisingly been opposed by the legal profession and solicitors who are concerned they will lose their long held almost exclusive rights of audience and ability to charge whatever they want for legal services.

If anything, several of Lord Gill’s key recommendations published over four years ago including those which criticised the justice system as being expensive and out of reach in 2009, are now long out of date, due to the shocking and ever rising costs of legal representation and costs of court time and services which litigants have compared being akin to “extortion charges demanded by protection rackets.”

Published today, in what is clear an attempt to take the sting of the embarrassment suffered by Justice Secretary who yesterday lost his battle to the long held safeguard of corroboration of evidence from the criminal justice system, the Scottish Government have heralded a number of changes which are claimed as a substantial improvement on what is currently nothing short of a money spinning closed shop Civil justice business model for the legal profession, and the judiciary.

The Scottish Government claims the Courts Reform (Scotland) Bill implements many of the recommendations of the Scottish Civil Courts Review, led by principal reviewer Lord Gill and commissioned in 2007. Lord Gill recommended substantial changes to modernise and improve the structure and operation of the courts, which he described in the review as ‘slow, inefficient and expensive’.

The Bill will also modernise Scotland’s courts by introducing greater specialisation and enabling more user-friendly procedures. Key provisions in the bill include:

• Increasing the threshold under which the sheriff court can deal with civil cases from £5,000 to £150,000 – freeing up the Court of Session to deal with the most challenging civil disputes. This is expected to strengthen the role of the sheriff court, while reducing costs and delays for litigants.

• Creation of a new national personal injury sheriff court, where such cases will be heard by specialist sheriffs.

• Creation of a national Sheriff Appeal Court to deal with summary criminal appeals from sheriff and justice of the peace courts, and civil appeals from sheriff courts. This will help avoid the need for some civil appeals to be heard in the Court of Session and some criminal appeals in the High Court, delivering more proportionate costs, while preserving the right to appeal to the higher courts.

• Creation of a new judicial post – the summary sheriff – to resolve lower value civil cases such as debt cases more swiftly and efficiently, while also dealing with summary criminal cases.

• Plans for specialist sheriffs and specialist summary sheriffs in areas of law such as family, housing, personal injury and commercial law, with the expertise to deal with these issues as swiftly as possible.

• New procedures for judicial review cases in the Court of Session including a three month time limit, and new procedures for appeals within the Court of Session and some appeals to the UK Supreme Court to improve efficiency.

Justice Secretary Kenny MacAskill said: “As highlighted by Lord Gill, our civil justice courts have remained relatively unchanged for more than a generation and need to be made more effective and efficient. This bill takes forward our commitment to ensure that Scotland’s civil justice system becomes more accessible, affordable and efficient for those people who need to resolve civil disputes.

He continued: “At present many lower value personal injury cases are raised in the Court of Session costing the parties a disproportionate amount and clogging up the court. In future, most of these cases will be able to be raised in the specialist personal injury court with specialist sheriffs and procedures designed to achieve settlement swiftly and at a proportionate cost to the parties. The sheriff courts are well placed to handle this transfer as the total cases coming out of the Court of Session is only around three per cent of the civil caseload in the sheriff courts.

MacAskill, who was once a High Street solicitor went on to claim: “Our reforms will help us ensure that the right cases are heard in the right places – reducing delays, cost and bureaucracy. They will also offer clearer routes to justice and more specialisation for a range of cases, from personal injury cases to family law.”

The Lord President, Lord Gill, said: “With the introduction of this Bill Scotland has the opportunity to have a civil justice system that is fit for a modern Scotland. Delay and cost have been the bane of Scottish justice for decades. These reforms will enable the courts to deliver the quality of justice to which the public is entitled. I am grateful to the Cabinet Secretary for Justice for his support for the proposals of the Scottish Civil Courts Review and for his vision in promoting this legislation.”

Which? Executive Director Richard Lloyd said: “Getting the courts working better for people must mean cases being dealt with quickly and cost-effectively. Which? supports the plans under the Courts Reform Bill to move business below the value of £150,000 in to the Sheriff Courts as this will mean more consumers will be able to seek redress for poor services or faulty goods. That will be good for consumers and good for the many businesses that play fair with their customers.”

The Scottish Government did not provide any supportive comments directly from litigants who have found it difficult to gain hearings in court, however Diary of Injustice can.

Commenting on the Scottish Government’s civil justice reform proposals, a personal litigant who has recently been charged tens of thousands of pounds for incomplete transcripts of court hearings before Scotland’s senior judges claimed the reforms do not go far enough.

He said: “It is all very well to produce press releases claiming advancements in justice but when litigants really need to use court services and find they cannot obtain legal representation, it is often the case court fees are too expensive, and of such poor quality that justice is unobtainable in the Scottish courts.”

He continued: “And even if you do have a solicitor, it will end up costing you thousands of pounds to achieve very little if anything.”

Speaking to Diary of Injustice today, a legal insider claimed the Civil Courts reforms will not serve to improve the image of Scotland’s expensive yet poor quality justice system at home or abroad.

He  said: “If the Justice Secretary hopes these piecemeal reforms will attract civil cases and other business to the Scottish courts, he will be sadly disappointed.”

He continued: “London’s courts, internationally respected and much less problematic than Scotland will continue to have clear advantages over the Scots model which is after all based upon a small jurisdiction widely associated with excessive legal fees, inferior legal services, and mounting problems with its judiciary.”

BACKGROUND TO CIVIL JUSTICE REFORM IN SCOTLAND

Lord Gill Lord Justice ClerkThe Lord Justice Clerk, now Lord President, 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 several years ago, 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.”

Previous articles on the Civil Courts Review and reforms of Scotland’s antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.

 

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Quango’s new rulers for courts : Access to civil justice ‘up for grabs’ as Lord President and ‘usual suspects’ make up new Scottish Civil Justice Council

New justice quango to make rules for Scotland’s unfit for purpose Court of Session, Sheriff Courts. EARLIER this week the latest attempt to improve Scotland’s unfit for purpose, “Victorian” civil justice system was announced by Scotland’s top judge, Lord President Lord Brian Gill, in the form of the new Scottish Civil Justice Council (SCJC), the latest quango from Scotland’s antiquated courts system loaded with lawyers, judges and a mere two consumer representatives, which is charged with improving the rules governing civil justice in Scotland.

The new SCJC, which some legal insiders have jokingly dubbed “mad cow disease for the justice system”, replaces the existing Court of Session Rules Counciland the Sheriff Court Rules Council both of which did precious little for Scots access to justice over the decades of their existence, so little in fact, the current Lord President Lord Gill published the Scottish Civil Courts Review in 2009, a two year project which resulted in heavy criticism of Scotland’s civil justice system over which the former two rules councils presided.

The new Scottish Civil Justice Council will take over the rule drafting functions of the former two rules councils and will also have a new, wider, role to advise and make recommendations on the civil justice system. However, any improvements over the earlier arrangements are expected to be measured at a glacial pace, expected to take years, rather than provide immediate relief to Scots stuck in litigation for years, even decades.

Announcing the appointment of members to the Scottish Civil Justice Council, established under the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013, the Lord President, Lord Gill, said: “I am delighted to announce the appointment of members of the Scottish Civil Justice Council. The new Council will be responsible for delivering vital improvements to the civil justice system.

Lord Gill continued : “Each member will bring valuable skills and personal experience to the Council and I am confident that collectively, will be more than capable of meeting the significant task ahead in the implementation of the forthcoming civil courts reforms. An open and competitive recruitment exercise was held for the non-judicial members and I am grateful to all those who applied.”

The composition of the council is provided for by section 6 of Scottish Civil Justice Council and Criminal Legal Assistance Act 2013. The Act states that the Lord President is to appoint at least 4 judicial, 2 advocate, 2 solicitor, 2 consumer representative members and may appoint up to 6 LP members (these are appointments made at the Lord President’s discretion).The Lord President, the Chief Executive of the Scottish Court Service and the principal officer of the Scottish Legal Aid Board are members of the Council by virtue of their respective offices.  One member of Scottish Government staff is appointed by the Scottish Ministers. Judicial, advocate, solicitor, consumer representative members and LP members hold office for three years.

List of Council members:

The Lord President, Mr Eric  McQueen, Chief Executive of the Scottish Court Service, Mr Lindsay Montgomery CBE, Chief Executive SLAB, Miss Jan Marshall, Scottish Ministers’ appointee, Lord Menzies (judicial member), Lord Tyre (judicial member), Sheriff Principal Stephen (judicial member), Sheriff Abercrombie (judicial member), Mr James Wolffe QC (Advocate member), Mrs Sarah Wolffe QC (Advocate member), Mr Eric Baijal (Solicitor member), Mr Duncan Murray (Solicitor member), Mr Ian   Maxwell (Consumer representative member), Miss Lauren Wood (Consumer representative member), Mr Joseph d’Inverno (LP member), Professor Frances Wasoff (LP member)

About the Civil Justice Council

The creation of a single civil rules council for Scotland was one of the recommendations of the Scottish Civil Courts Review.  Many of the review recommendations will need new rules of court and the Scottish Civil Justice Council, which will have oversight of the entire civil justice system, will be responsible for taking these forward.  It will also be responsible for keeping the civil justice system under constant review.

 

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