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NO MONEY NO JUSTICE: Slow, costly courts, £220K a year judges on junkets & justice staff on the take prompt Scottish Government proposal for 25% hike in court fees

Scotland’s courts to become 25% more rip-off than before. EVERYONE knows the Scottish Courts and Tribunals Service (SCTS) and our powerhouse Sheriff Courts & the fabled Court of Session teeter on the brink of consternation, calamity, comedy and collapse at the end of each working legal week.

Every time a member of the judiciary takes time off their busy schedule of frequently flying £5K international holidays on the taxpayer – to perform the actual £200,000 a year job of being a judge and sit and listen to the daily farce and often dodgy evidence presented by Crown Office prosecutors before the Criminal Courts – you would honestly think from their faces – the end of the world had arrived.

Judges are so rich poorly paid these days, they have to conceal their vast wealth with the threat of constitutional calamity if it were revealed – or flog their multi million pound Victorian villas, properties in the country, undeclared holiday homes in Dubai or wherever – to members of their own family – for millions of pounds and avoiding those awful taxes which apply to the rest of us.

Let’s not even talk about the others … week long holidays in Qatar, North America, the far east, or jetting off to New Zealand for a week, then retiring a few days later, the gold Rolexes, collections of valuable items, taxpayer funded security fit for Royalty, extra ermine gowns & hanging around the works of Leonardo Da Vinci in the hope of life eternal.

How about the well paid poorly paid overworked court staff you say? Well, not really.

‘Hospitality’, undeclared deals on the side with law firms and other less talked about financial arrangements for increasing numbers of court staff compensate for the daily struggle of putting pen to paper and reminding the elderly sheriff the one before him ‘is a bad yin’.

So, where does all the money come from to pay for your access to justice and the privilege of appearing before someone festooned in 18th Century fancy dress and surrounded by wood panelling and enormously expensive digital recording equipment – conveniently unplugged so as not to record the daily courtroom farce or your expert witness disagreeing with Lord know-it-all.

The Scottish Government gave the Scottish Court Service a whopping £88.9million of your cash in the 2016-2017 budget. Plenty there to go around.

The judiciary on it’s own receive a staggering £40million of public cash, to groan, grizzle, gloat & giggle as they listen to counsel after counsel, litigant after litigant – while dreaming of appearances & junkets to warmer, wealthier climes.

The Legal Aid budget – once standing at over £160million a year and now allegedly a very very very dodgy £136.9million in the 2016-2017 budget – your cash going on lawyers, criminals and some of the most laughable, inept court hearings in existence.

The Crown Office & Procurator Fiscal Service (COPFS) – widely regarded by all sides as the pre-eminently most corrupt institution in the entire Scottish justice system – received a staggering £112.5million of your cash. To do what? to cover up it’s own staff and prosecutors leaking case files and evidence to criminals, or snorting cocaine and beating up Police Officers.

And, let’s not forget the £58 million of public cash spent by the Scottish Court & Tribunal Service on new doorknobs, a lick of paint and new scones for the Court of Session ‘powerhouse’ – which must rank as Europe’s slowest, most distorted, most expensive & interest ridden seat of justice, ever.

All this must be paid for, somehow. Loads-a-money. Your money. Certainly not theirs, for they are all public servants paid for by you.

So we come to the Scottish Government’s proposal to go for ‘full cost recovery’, buried in the now familiar loaded consultation papers issued by the Justice Directorate of the Scottish Government.

And, instead of blaming the fee rises on our slow, difficult and inaccessible courts, the Scottish Government instead has chosen to blame budgetary cuts imposed by Westminster.

The Scottish Government Consultation on Court Fees 2016 sets out proposals for fees in the Court of Session, the High Court of the Justiciary, the Sheriff Appeal Court, the sheriff court, the Sheriff Personal Injury Court, and the justice of the peace court. Court fees are a major source of income for the Scottish Courts and Tribunals Service and it has become necessary to increase fees in order to achieve full cost recovery. It seeks views on two options each of which is aimed at providing full cost recovery.

Fee hikes across the board of almost 25% for civil actions in Scotland and alternative targeted rises are being proposed by Scottish ministers – as part of a consultation on Scottish court fees which runs until October.

Court fees have generally been reviewed every three years, with the last round being implemented in 2015, however this time around “the Scottish Government has decided to accelerate the move towards full cost recovery“.

The Consultation on Court Fees – open until 12 October 2016 – sets out proposals for fees in the Court of Session, the High Court of the Justiciary, the Sheriff Appeal Court, the sheriff court, the Sheriff Personal Injury Court, and the justice of the peace court. Court fees are a major source of income for the Scottish Courts and Tribunals Service and it has become necessary to increase fees in order to achieve full cost recovery. It seeks views on two options each of which is aimed at providing full cost recovery.

The Scottish Government states “It is necessary to raise fees so that the Scottish Court and Tribunals Service is able to achieve full cost recovery from its courts. We are consulting on two options seeking the views of stakeholders on the best way to achieve this. Stakeholders will be able to provide their opinions on which option is better from the point of view of their own court actions and, if they are an organisation, of their clients. This will help the Scottish Government’s decision on which option should be incorporated into the necessary Scottish Statutory Instruments.”

“A review is justified both by the need to end the cost to the public purse of subsidising the civil justice system, and by the introduction of the new simple procedure which replaces the current small claims and summary cause procedures.”

Simple procedure will be phased in from 28 November for actions worth not more than £5,000. It is planned to retain existing fee levels for summary cause and small claims actions, so that at present levels lodging a claim for up to £200 under simple procedure would mean a fee of £18, and £78 for a claim above that level and up to £5,000.

If a flat rise is the option chosen, all Court of Session and sheriff court fees will rise by 24%, the amount needed to fund a deficit of £5.4m on gross fee income of £22.2m in 2014-15. That would mean lodging fees of £22 or £97 for simple procedure cases, £119 (from £96) for summary applications and ordinary sheriff court actions, £187 (from £150) for non-simple divorces, and £266 (from £214) for Court of Session or Sheriff Personal Injury Court actions. Hearing fees would jump from £227 to £282 in the sheriff court, and from £96 to £119 per half hour (single judge), or from £239 to £297 per half hour (bench of three) in the Court of Session.

Suggested targeted fee rises, the other option, would raise more money overall. The £18 simple procedure lodging fee would remain unchanged, as would the £150 divorce lodging fee and the £227 sheriff court hearing fees, as well as fees in the recently introduced Sheriff Appeal Court. However there would be a £100 lodging fee for a simple procedure claim for more than £200, £120 for summary applications and ordinary causes, and £300 for a Court of Session action. In that court the cost of lodging a record would almost double from £107 to £200, and hearing fees more than double to £200 for every half hour before a single judge, and £500 per half hour before a bench of three.

The alternative scheme would also see the introduction of graded fees in commissary court proceedings for authorising executors to handle a deceased person’s estate. Whereas at present for all estates worth more than £10,000 there is a flat fee of £225, it is proposed to exempt estates worth less than £50,000 but to charge £250 for estates between £50,000 and £250,000, and £500 for larger estates.

The consultation paper states on Page 8: “We are aware that there will be a tipping point where fee increases may deter people from raising actions”, the paper observes. “We do not believe that the level of rises in either option 1 or 2 as proposed will have a deterrent effect as individual fees will still be relatively low, particularly when viewed against the total costs of taking legal action including the cost of legal advice.”

Be sure to enter your thoughts in the Scottish Government’s consultation. Go here to do so: Consultation on Court Fees You have until 12 October 2016.

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MY COURT NOT YOURS: Scotland’s top judge slams politicians and government as “insidious” in law conference attack on transparency & calls to reform secretive judiciary & vested legal interests

Top judge Brian Gill attacks calls for judicial reforms. IN a speech to the Commonwealth Law Conference held in Glasgow SECC last weekend, Scotland’s top judge Lord President Lord Brian Gill accused government, legislators and transparency as being “insidious” threats to his way of doing things and the judiciary at large.

The lengthy speech from Gill (73), supposedly on independence of the judiciary & legal profession ended up as a bitter tirade aimed at politicians and those calling for reform of the secretive world of the nation’s judiciary and the vested interests of those at the top of the justice system.

Launching a fierce attack on calls for judicial transparency, the political process and Holyrood MSPs who are investigating accountability and transparency within the judiciary amid calls for a register of judges interests, Lord Gill told his audience: “The threats to judicial independence do not always come with a knock on the door in the middle of the night.  In a society that prides itself on the  independence  of  its  judiciary,  the  threat  may  come  in  insidious ways, even at the hands of well-meaning governments and legislators, in the name of efficiency and, ironically,  in the name of  transparency.”

And, Gill – Scotland’s longest serving judge – went on to tell his audience of lawyers, judges & academics that protesters he encountered standing on the Heart of Midlothian in Edinburgh’s Royal Mile were lucky they were not dragged off by Police.

In a swipe at unidentified persons who were apparently calling for the top judge’s resignation, Gill told his audience: “Two years ago, I was crossing the square outside my court when I noticed two individuals standing, perhaps appropriately, at the Heart of Midlothian, the scene of public executions in Edinburgh in former times. They were holding a large banner. It caught my eye. It said “Lord Gill – Resign!” I never discovered what their reasons were; but I thought what a privilege it was to be a judge in a society where the public could make a constructive suggestion of that nature without being taken away by the police.”

The barbed comments from the ageing judge against all and sundry come as Gill continues to fight a bitter two year battle against Holyrood msps who overwhelmingly support proposals to establish a register of interests for members of the judiciary as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Since early 2013 Lord Gill has refused three invitations to appear before the Scottish Parliament’s Public Petitions Committee and be questioned on the issue of judges refusing to declare their interests.

The top judge has instead sent several strongly worded letters to msps warning them they cannot compel a judge to appear at Holyrood. Gill used a loophole in the Scotland Act to dodge questions on his hostility to transparency and also implied in a further letter he may have to reconsider allowing judges to cooperate with the Scottish parliament in the future.

The proposals to create a register of judicial interests envisages the creation of a single independently regulated register of 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.

Faced with investigating the secretive world of judicial vested interests, MSPs who sit on the Scottish Parliament’s Public Petitions Committee instead took evidence from Scotland’s first Judicial Complaints Reviewer (JCR) Moi Ali. During questions at the Scottish Parliament’s Petitions Committee, Moi Ali told msps there was little transparency or accountability in Scotland’s judiciary.

And, despite Scottish Ministers attempt to thwart a debate at Holyrood last October 2014, most msps backed a motion urging the Scottish Government to create a register of judicial interests – reported along with video footage & the official record, here: Debating the Judges

Speech given by Lord Gill to Commonwealth Law Conference Glasgow 2015 Continuing his lengthy seventeen page speech, Gill told his audience of legal professionals that judges lead a lonely life and have no support from anyone else except themselves.

He told his listeners: “The highest priority of judicial education is not to teach judges the law, but to teach them about themselves. The life of a judge is a lonely one where the only support network available is that of one’s colleagues.”

However, the sad lonely life of a judge – as Gill would have the public believe – does not appear to preclude the judiciary from becoming involved in tax avoidance schemes, huge movements of wealth around the world, investing in companies who benefit from business in the courts and jet setting around the world at taxpayers expense.

Last year for example, Lord Gill flew off to a five day state visit to Qatar – details of which have been kept mainly hidden from prying eyes.

Gill was later criticised in the Scottish Parliament for attending Qatar and giving a speech on judicial ethics, while refusing to answer questions from msps on judicial ethics, accountability and transparency. MSP Jackson Carlaw even joked the Petition Committee should have gone to Qatar to question the top judge after he refused to show up at Holyrood,

Following Lord Gill’s frequent attacks on “aggressive media” over calls for transparency – and the top judge’s subsequent threat to ban journalists from accessing court documents last year in a highly public fit of pique, Gill launched another broadside against the press for their reporting of cases in the courts.

Gill said: “Criticism of one’s judgments in the media is never a pleasant experience; but, as Lord Woolf has commented, we must swallow our pride and be thankful for a free press which stands to safeguard our independence.

Independence relies upon public understanding of our courts and the way in which they should expect our courts to operate. Public awareness breeds public confidence. For most people, newspaper accounts of court cases are the source of their knowledge of our justice system. There is inevitably a tension in the relationship between the judiciary and the media. The court adjudicates on matters involving the media fairly frequently. Therefore, as Lord Woolf rightly observes, we should be circumspect about having a relationship with the media that might cast doubt on judicial independence. It is a fine line to tread.

In modern times, our court systems have a dedicated media team, who liaise with the media to ensure that there is an open and accurate flow of information. For, the media are helpful to our cause only if facts are reported with accuracy. Good communication with the media – at arm’s length – is a sign that our court system is in touch with the community and. I would argue, is in itself an important aspect of judicial independence.”

Speaking on his two year consultation to change the rules on judicial discipline and complaints – which ended up with much the same rules as before, Gill said: “A related and more obvious aspect of judicial professionalism is judicial discipline. It is immediately obvious that there is a tension between the concepts of accountability and independence. There must be an effective mechanism in place for investigating and sanctioning misconduct without eroding the independence of the judiciary.”

“Appointment to the bench does not confer immunity from discipline. It is therefore usually suggested that judicial discipline should be left in the hands of the judiciary themselves. That excludes the possibility of interference from the executive, but it does not entirely resolve the independence problem. If the judiciary is essentially self-regulating, the perception of a judiciary driven by self-interest and self-protection, and shrouded in mystery, will do us great damage. It does little to ensure that the public have a satisfactory impression of accountability.”

“In Scotland, this difficulty has been overcome by our adopting two distinct processes, namely, a complaints procedure and a ‘fitness for office’ procedure. If I were to conclude that a judicial office holder was unfit for office, the matter would be referred to an independent tribunal to investigate and report on whether there was unfitness to hold office by reason of inability, neglect, or misbehaviour. I have never had to take such a step. Disciplinary procedures of this nature are rare. We are fortunate to have a professional and dedicated judiciary. Perhaps, that is a reflection of the fact that we now have a comprehensive Statement of Principles of Judicial Ethics that spells out exactly what conduct we expect of our judiciary.”

Gill ended his speech describing his idea of the “ideal judge”, notably leaving out transparency as a requirement for those on the bench.

Gill told his audience: “So, what kind of judge do we wish to have? First and foremost a judge who is appointed fairly and publicly. Every decision to appoint is made ad hoc. Therefore we should not be excessively prescriptive lest we fail to allow for the unforeseen. But certain general priorities are there for your consideration. It is surely desirable that our ideal judge should be one who has experienced the true meaning of an independent profession and who exemplifies excellence allied to good judgment. A judge who is willing to learn and to be accountable. A judge who has self-knowledge, humility, and an understanding of the nobility of the office to which he has been called.”

Judges, lawyers and academics from many Commonwealth nations attended the conference at the Scottish Exhibition & Conference Centre (SECC). Those organising the conference claimed the gathering of legal eagles generated an economic boost in the region of £1.4m for the city.

The conference – last held in 2013 in Cape Town, South Africa – which Lord Gill jetted to at taxpayers expense has been brought to Glasgow in partnership between the Law Society of Scotland, Glasgow City Marketing Bureau (GCMB) and the SECC. It is officially the conference of the Commonwealth Lawyers Association, which works to promote human rights and the rule of law across the Commonwealth, and to support lawyers in countries where their work may incur sanctions from the authorities.

Just prior to the start of the event, it was revealed Wikileaks founder Julian Assange was booked to speak to the conference via video link.

During his speech, Mr Assange suggested communications were being monitored between legal professionals and the wikileaks team.

However, when judges discovered the Assange booking, several judicial figures including Lord Gill and also Lord Neuberger & Lord Hodge of the UK Supreme Court among others – walked out of the conference.

A spokesperson for the Judicial Office for Scotland said: “The conference programme was changed to include Mr Assange’s participation at short notice and without consultation. Mr Assange is, as a matter of law, currently a fugitive from justice and it would therefore not be appropriate for judges to be addressed by him.Under these circumstances the Lord President, Lord Gill and the other Scottish judicial office holders in attendance have withdrawn from the conference.”

A spokesman for the UK Supreme Court said: “Lord Neuberger and Lord Hodge share the concerns expressed by Lord Gill and his fellow senior Scottish judges regarding the late addition of Mr Assange to the conference programme. As a result of this unfortunate development, they trust that delegates will understand their decision to withdraw from the conference.The justices took this action regretfully, as they value greatly the work of the Commonwealth Lawyers Association and the role of the conference as an important forum for sharing experiences and good practice across the legal profession.”

The Judicial Office have offered no further comment on Lord Gill’s remarks.

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

 

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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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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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Vested interests ‘run Scotland’s courts’ as judges rule £90K & £120K civil jury awards over accident deaths ‘were excessive’

Lord_Hamilton_03Decision to ‘guide’ juries on civil awards shows vested interests have free run of our courts. A RULING in Scotland’s Court of Session by a five judge bench under the retiring Lord President, Lord Hamilton that damages awards made by civil juries to relatives of two people killed in separate accidents ‘were excessive and the claims should be heard again’ will prove to many that vested interests of professions, big business & insurance firms have the ability to skew justice in their favour in Scotland’s courts. The ruling, made earlier this week is seen by some as the thin end of the wedge to ending civil juries in damages awards in Scotland’s courts are over ‘paltry’ sums which not even a Banker would accept as a bonus or a judge would accept as an annual salary or retirement pension..

Previously, civil juries at the court of Session had found negligence on the part of the defenders had caused the deaths, where in the first case, KIRSTY MAY HAMILTON Pursuer and Respondent; against FERGUSON TRANSPORT (SPEAN BRIDGE) LTD Applicant and Defender: jurors awarded Kirsty Hamilton £120,000 after her mother, Caroline (aged 50) died in a road traffic accident when her car was crushed by a lorry near Fort William. Ms Hamilton was 17 at the time of her mother’s death. In the second case,  GILBERT DENNIS THOMSON Pursuer and Respondent; against DENNIS THOMSON BUILDERS LTD Applicant and Defender, Dennis Thomson, was awarded £90,000 by a civil jury for the death of his son James, then aged 26, who died in an accident on a building site. Mr Thomson senior was 57 at the time of his son’s death.

However, the five judge bench – Lord Eassie, Lord Clarke, Lord Emslie, Lord Brodie and Lord Hamilton who heard the appeals of the companies previously found to be liable for the cause of the two fatalities, have now decided the compensation claims of the relatives should be heard again, and this time, the jurors should be given “guidance” from the presiding judge in assessing damages, with the judge suggesting a spectrum in which the award might lie.

The implication of the judges decision is that any further awards made in the cases should be much less than originally made by the earlier jury, leading many to conclude that vested interests are controlling the Scottish courts and the public’s access to justice.

In a telling excerpt from the opinion of the court, Lord Hamilton, sounding more like he was more concerned with curtailing publicity & growing enquiries over the disparity of justice where the amount of financial awards made by judges in damages actions without juries are falling well short of awards made in cases where a civil jury has made it’s decision, said : “If greater regard than hitherto is not had by judges to jury awards then the disparity between the judicial and jury awards is likely to remain.” Lord Hamilton went onto claim such a “state of affairs which lacks the consistency which is one of the hallmarks of a mature system”

The now retired Lord President commented that the absence of directions about sums awarded in similar cases by a civil jury, as opposed to that awarded by a judge was a “less than satisfactory aspect of civil jury trials”. Lord Hamilton went onto say it was time “to set a framework for civil juries against which they can address levels of damages”which may easily be interpreted as an attempt to deprive a civil jury from making any kind of award which does not sit easily with a judge, or the vested interests of insurers & big business.

Lord Hamilton suggested several ways to address the disparities between awards made by judges & civil juries in Scotland’s Courts, saying : “The objective must now be to seek to narrow that disparity and to eliminate, in so far as practical, that lack of consistency. That can be done by three measures: first, by judges, sitting alone or in the Inner House, having significantly more regard to available jury awards (particularly where they demonstrate a pattern); secondly, by juries being given by the presiding judge fuller guidance than hitherto as to the level of damages which, consistently with other cases, might reasonably be awarded by them; and, thirdly, by appellate courts continuing to intervene, where necessary, on comparative justice grounds as envisaged under statute since 1815. This is a process which will take time and experience to mature.”

In what some may interpret as comments intended to stave off any intervention by the Scottish Parliament (similar to the asbestos damages bill) to remedy what many will perceive as a huge injustice in the cases of the deaths of the two persons, Lord Hamilton wrote in his opinion : “There is no reason to suppose that Parliament intended that awards by juries should have priority over awards by judges – or vice versa. Judicial and jury awards give different but complementary guidance for what is a just award of damages. In an age when life may be thought to be more precious than it may have been thought to be by earlier generations, and where consequentially the loss of the life of a close relative may seem a greater loss than it might have seemed earlier, the input of jury awards, reflective of the views of the community, may, in death cases, be particularly important.”

Lord Hamilton continued : “While awards made by juries without the benefit of judicial guidance may be at greater risk of being arbitrary or of having been influenced by illegitimate factors, those made with that (non-prescriptive) benefit are likely to be a valuable source for assessment in future cases. As to the second element, some suggestions are made below (para [76]) as to what procedural arrangements might be put in hand. The objective should be to eliminate, or at least reduce, the disparity between judicial and jury awards while at the same time securing that “awards … in comparable cases … bear a coherent relationship with each other” (Girvan, per Lord Clyde at page 25). If that objective is achieved, then parties whose disputes over damages are litigated can be better satisfied that they have had a fair trial – whether the adjudicating body is a judge or a jury.”

The size of the awards made by the civil juries in Scottish courts may surprise international readers, particularly those from the United States where awards in similar cases would normally run into the hundreds of thousands of dollars, or even millions of dollars. However, Scotland’s justice system has yet to catch up, if ever, with other jurisdictions who allow greater access to justice to victims of injustice, rather than what is seen as the regular influence of vested interests in Scotland’s courts which limits justice, and punishment over the loss of loved ones, to what amounts to little more than a few pennies after legal fees are paid.

As as happened in so many cases before in Scotland’s courts, bankers, politicians and judges can expect bigger bonuses & retirement pensions than any relative can expect via a future award made by a judge or civil jury in a case in a Scottish court.

The full details of the opinion can be read here :  CSIH 52 PD2039/09 and PD1444/09 OPINION OF THE LORD PRESIDENT in motions for new trials in causis (1) KIRSTY MAY HAMILTON Pursuer and Respondent; against FERGUSON TRANSPORT (SPEAN BRIDGE) LTD Applicant and Defender and (2) GILBERT DENNIS THOMSON Pursuer and Respondent; against DENNIS THOMSON BUILDERS LTD Applicant and Defender

Of note is the inclusion in the hearing of counsel from the Scottish Government Legal Directorate appearing for Scottish Ministers.

BBC News reported on the case here : Awards in Highland and Shetland accidents ‘excessive’ judges rule

 

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Reform of civil justice & court costs ‘a dying duck’ : Lawyers vested interests respond to Scottish Government’s Taylor Review

Taylor Review Page Cover_Page1Taylor Review consultation will fail to address, reform Scotland’s rip-off justice system. NEARLY FOUR YEARS AGO, the Lord Justice Clerk, Lord Gill issued his Civil Courts Review, describing Scotland’s justice system as “… 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.” The well respected judge who some hope will replace Lord Hamilton as Lord President, went onto criticise the civil justice system even further, leaving little doubt in anyone’s mind of the futility of using Scotland’s civil courts, saying “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”. The Scottish Government’s response to Lord Gill’s two year Civil Courts Review was, more talk, and little action, and adding insult to injury, a review of Lord Gill’s review, branded the Taylor Review.

Over a year after Lord Gill had issued his highly critical findings on Scotland’s Victorian civil justice system, the Scottish Government announced their plans, with a proviso many of the ‘reforms’ would take years to implement, if ever. This was reported here : Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’ and finally in 2011, the Scottish Government announced a review of Lord Gill’s review, seen by most as a time wasting exercise for vested interests, reported here : Scottish Government delay reforms on costs of litigation & access to justice as Minister announces 18 month ‘time wasting’ review by retired sheriff.

It took at least another six months before the Taylor Review team launched their consultation, covered by Diary of Injustice, here : Going to court is like being taken to the cleaners ? Participate in the Review of Expenses and Funding of Civil Litigation in Scotland Consultation.

While the Taylor Review has yet to report on, & recommend reforms to the way justice is obtainable (usually unobtainable) in Scotland, the vested interests of the legal profession have, predictably, released their own responses to the Taylor Review, giving little prospect of any changes to the ridiculous cost of litigating in Scotland’s civil courts.

Readers can view the legal profession’s responses to the Taylor Review at the following links : Response from the Law Society of Scotland, Law Society of Scotland’s Remuneration Committee on shortfall in judicial expenses, Response from the Faculty of Advocates, Response from the Glasgow Bar Association

Not withstanding the amount of time which has passed since Lord Gill’s critique on Scotland’s costly, antiquated civil justice system, nearly a full four years which have seen costs of going to court spiral in Scotland, there is little if anything in the responses from the legal profession which may contribute to any significant falls in the costs of obtaining justice in Scotland. Lets face it, lawyers are never going to concede justice could, and should become cheaper, simply because it affects their profits, and of course, the wider influence of the legal profession on public & political life in Scotland. Scots therefore, should not expect easier or cheaper access to justice anytime soon.

BACKGROUND TO CIVIL JUSTICE REFORM IN SCOTLAND

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

The Scottish Government’s full response to Lord Gill’s Civil Courts Review can be viewed online here : Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review or can be downloaded directly, here : Scottish Government Civil Courts Review response (pdf)

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links : Volume 1 Chapter 1 – 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb) Volume 2 Chapter 10 – 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb) Synopsis (215Kb)

Readers may also wish to gauge how Holyrood and the Scottish Government are treating the Civil Courts Review, from a report covering the last Holyrood debate on the subject, along with video footage, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

Diary of Injustice’ coverage of the Civil Courts Review from its publication to the present, can be found here : Civil Courts Review – The story so far.

 

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Going to court is like being taken to the cleaners ? Participate in the Review of Expenses and Funding of Civil Litigation in Scotland Consultation

Taylor Review Page Cover_Page1Taylor Review consultation on costs of justice aims to tackle widespread evidence that litigation in Scottish courts is expensive, exclusive & unproductive. GOING TO COURT is like being taken to the cleaners, whether its down to the fees of your own solicitors, the fees of the other side’s legal team or the court’s fees. No matter how you word the dreaded ‘access to justice’ equation, going to court in Scotland is a bit of a rip-off. There is no escaping the fact that justice, and access to it, is, with ample evidence, widely perceived to be the domain of the rich, vested interests, someone who can slip a judge a benefit on the side, or the ones who know how to bend legal aid rules to pick up public funds for taking on cases for convicted rapists, murderers & fraudsters which make the rest of the nation sick.

Put it this way, if you’ve ever had the feeling a serial child murderer stands a better chance of obtaining access to court & millions in taxpayer funded legal aid for a dispute over prison rights, as opposed to your own court case involving claim against a swindler who stole your investments, a lawyer who ruined a will or took your house, a medial professional who committed negligence or who caused a death in your family, or some other professional who, through their actions ruined your life and then kept on ruining your life in some kind of vendetta, you are in the right country. It all happens here, every week of every month of every year.

Those of you who attempt to pursue a case through Scotland’s antiquated “Victorian” court system to gain ‘justice’ simply end up joining a queue of thousands of people who walk in & out of Scotland’s revolving door courts system each year achieving nothing more than lining the pockets of the legal profession, the courts, & the judge who sits there on a £200K plus salary, managing an occasional grumble or mumble in some kind of inaudible verbal abortion more reminiscent of a silent horror movie, while frequently finding or ruling for the vested interests who his or her lordship dare not upset.

In an attempt to address the cost aspect of obtaining justice in Scotland’s Victorian civil courts, the Scottish Government’s Taylor Review of Expenses and Funding of Civil Litigation in Scotland has announced a consultation which readers and anyone with an interest in access to justice issues in Scotland should participate in. I also encourage anyone who does participate in the Taylor Review to ask their msp to participate. After all, you can bet your last penny the vested interests of the legal profession are participating in the consultation, and demanding costs be kept as they are, so justice can be delivered at great expense rather than being delivered on the cheap.

Heaven help Scotland’s greedy multi billion pound legal services rip-off industry if costs of going to court or conducting litigation were ever likely to be reduced …

The Taylor Review consultation paper is available to download here:

Consultation Paper (Word Document) 2253.5 kb

Consultation Paper (PDF Document) 856.85 kb

An announcement from the Taylor Review Team encourages participation in the consultation, stating : We hope that the consultation process will generate considerable debate and that you will feel able to respond to the questions that we pose.  Please do not feel that you must respond to every question.  There may be particular issues which interest you and you should feel free to limit your answers to such areas.  If there are additional points that you wish to make that are not covered by the Consultation Paper then please feel free to do so.

You can find out more about the Taylor Review HERE and readers should note responses to the consultation are to be received by the review team no later than Friday 16 March 2012.

Review of Expenses and Funding of Civil Litigation in Scotland

STATEMENT BY SHERIFF PRINCIPAL TAYLOR

LAUNCH OF TAYLOR REVIEW CONSULTATION

In September 2009, the Scottish Civil Court’s Review (SCCR) under the chairmanship of The Rt. Hon. Lord Gill presented its Report to the Scottish Government. I am pleased that the Scottish Government has responded so positively to the recommendations in the Report.

The Board of the SCCR knew that Lord Justice Jackson was undertaking a Review of Civil Litigation Costs in England and Wales and would be reporting in early 2010. Accordingly, the Board thought it would be prudent to await the outcome of LJ Jackson’s Report before formulating recommendations on judicial expenses in this jurisdiction.

LJ Jackson reported in 2010 and the Westminster Government has responded to that Report. The Legal Aid Sentencing and Punishment of Offenders Bill is presently making its way through the Westminster Parliament.

Earlier this year I was invited by the Scottish Government to chair a Review into the Expenses and Funding of Civil Litigation in Scotland. Part of my remit is to consult widely. Since the Review commenced, we have spoken to a number of people with an interest in the Scottish civil judicial process in order that we might identify those areas where it is thought that reform is necessary. We wrote to over 90 individuals and bodies seeking guidance on the issues upon which we should be consulting. I am also deeply indebted to the members of the Reference Group who have given of their time both generously and free of charge. Their contribution has been invaluable. This consultation document is the product of these discussions and responses. The responsibility for the content is, nonetheless, mine.

The consultation document covers a wide range of issues which have a significant impact on access to justice. Access to justice is a right and it has been said with some force that its absence is “an enemy of the rule of law”. For example, we ask for views on whether access to justice would be improved if lawyers in Scotland were allowed to enter into agreements with clients whereby the lawyers could express their fee as a percentage of the damages recovered. We also give an opportunity for members of the public and lawyers alike to give their views on the desirability of referral fees which is an issue which has generated considerable interest south of the border.

It is a matter of chance that we embark upon consultation at a time when the Westminster Bill is being debated in the House of Lords. The Scottish Government recognises the importance of access to justice and has adopted a different approach from its English and Welsh counterparts. It does not intend to make major changes to the scope of legal aid even in these times of austerity. It would however wish legal aid to become “a funder of last resort.”

I hope that there will be considerable debate generated by this document and that I will receive responses from as many sources as is possible. By so responding the Scottish public and professions will hopefully draw attention to all aspects of the issues contained in the consultation document. To assist the consultation process we propose to have public meetings in Aberdeen, Dumfries, Edinburgh, Glasgow and Perth. A wide range of responses should minimise the risk of there being unintended consequences arising out of the recommendations which will eventually be contained in my Report. I intend to report before the end of 2012.

 

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