Summary of Consultation Paper

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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