As part of the review into Civil Justice in Scotland ordered by
the Scottish Government Lord Gill has issued a consultation
document with the expectation that a report will be finalised for
publication by February 2009 - i.e. at the end of the two year
period allowed by the Justice Ministers' initial brief. Responses
to the consultation paper are due to be submitted by 31st March
2008. The consultation document extends to 135 pages, is divided
into five main parts but does not contain any recommendations even
provisional. The introduction identifies that "the aim is to
improve the system for the benefit of those for whom it is intended
to serve rather than those who work within it."
The five parts are:
1. Access to justice
2. Cost and funding of litigation
3. Structural issues
4. Function - i.e. how the system works and might work in the
future with specific reference, for example, to the rules of the
civil courts and case management, and
5. Working methods
Appeals remain unaffected by this report although rules
governing the validity of appeals, the time allocated to them and
efforts to shorten delay are identified for discussion.
1. ACCESS TO JUSTICE
The Committee is offering the view that there are three unmet
priorities:
A. Expedition/speed - this is not being achieved
B. Economy - litigation is too expensive because of the series of
procedural steps creating "fee opportunities" and both public and
private cost and
C. Appropriateness - i.e. matching the litigation to the
appropriate court
2. COST AND FUNDING OF LITIGATION
This part of the consultation seeks views on, inter alia:
- Speculative and conditional fee arrangements
- "Before" and "after" event insurance
- Proportionality of costs, and
- Effectiveness of the current system for recoverability of costs
against an unsuccessful party
3. STRUCTURAL ISSUES
In Scotland at present an unlimited Sheriff Court jurisdiction
overlaps that of the Court of Session. The Committee identify
several possible new principles to change that:
1. Every case should be allocated at least in the first place to
the lowest competent level available
2. Every case should be allocated to a territory near to and
related to the litigation
The Committee notes that Scotland is unique in not having a
third tier civil court - i.e. a local court to deal with lesser
cases and one option is the creation of a new "District Court".
Another option is to create a new Lower Chamber Sheriff Court.
3. A third option is to preserve the local jurisdiction but with
larger specialist courts in bigger towns dealing with
family/commercial/administrative and Judicial Review/specialist
personal injury courts
Any of these models could be coupled with the possibility of the
re-allocation of cases where new or important issues are
identified. Lord Gill has commented with approval (albeit with
qualifications and modifications) on the current English model for
a central administration of all of the business of the civil
courts.
SHERIFFDOMS
The current division of Scotland into 49 Sheriff Courts which
fit within 6 regional sheriffdoms derives from elderly historical
roots. The divisions are inevitably haphazard and related to
earlier needs and limitations on travel, etc. The inability to
transfer cases between sheriffdoms is a lack of flexibility which
is unattractive because it takes no regard for workloads in
different courts even within the region of each sheriffdom.
? One proposal is to dismantle boundaries of the sheriffdoms and
to create a central administration which would then allocate each
new case to the most appropriate court
? The current Sheriff Principal's position may be retained in
some way
? There are real questions to be answered as to allocation of
cases between the Sheriff Court and the Court of Session Outer
House. One possibility is to allow the central administration to do
that subject to consideration by a "gate-keeper" Court of Session
judge who would review and allocate cases either up to the Court of
Session or out to a Sheriff Court
? As a separate aspect of that, it is noted that most Small
Claims actions are an aspect of debt collection. These cases are
dealt with administratively in England and "courts on line" in the
Republic of Ireland. A result like this should be achieved for
Scotland
? The Commissary responsibility (i.e. supervision of Wills,
Executries and Trusts) should become administrative rather than the
responsibility of a sheriff as judge - except where a disputed
issue needs to be resolved
4. FUNCTION
The Gill Committee approves of case management but at this stage
has no particular views on an appropriate model. The English
example is recognised as achieving the management result but at
great cost. Currently, case management in Scotland is haphazard.
Lord Gill's personal view is that much of this could be done with
the benefit of efficient clerks of court.
The Gill Committee would probably recommend the preparation of a
standard form of writ for any litigation removing much of the
current requirement for formality in ordinary actions, removing
pleas-in-law and needless repetition encouraging brevity of
pleading with a simple outline of the relevant facts, a simple
statement of propositions of law relied upon - and then leaving it
to a defender who genuinely considers that they do not know what a
claimant's case is about to ask for more detail.
5. WORKING METHODS
This section identified a number of issues including:
- Pre-action Protocols
- Disclosure
- Expert evidence
- Pursuer's offers
- Civil Juries, and
- Sanctions for non-compliance
In the introduction to the consultation paper it is observed
that "the engagement of all interested parties will be
essential if the Review is to be successful in fulfilling its
remit. All contributions are welcome and will be taken into
consideration."
The consultation paper can be accessed on
http://www.scotcourts.gov.uk/civilcourtsreview/SCCCompleteR.pdf
Peter Anderson / Gordon Keyden
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