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Making Justice Work - Courts Reform (Scotland) Bill 24/05/2013 A response from the Society of Solicitor Advocates

Making Justice Work - Courts Reform (Scotland) Bill

A response from the Society of Solicitor Advocates

Introduction

We have arrived at the present point from a request made to Lord Gill, the then Lord Justice Clerk, by Cathy Jamieson, the then Justice Secretary, in February 2007 “to review the provision of civil justice by the courts in Scotland.”

There is no doubt the intention was to have a thorough review.  The only sacred cows would be those spelled out in the Acts of Union and the Scotland Act.  Beyond that the job was to identify problems and suggest fixes.  The sheet was far from blank, however, because the review was to have particular regard to

 The cost of litigation to parties and the public purse

  • The role of mediation and other methods of dispute resolution
  • The development of modern methods of communication and case management
  • The issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts 

Proposed changes were to address

Improving access to civil justice

  • Promoting early dispute resolution
  • Making the best use of resources
  • Ensuring cases are dealt with in ways proportionate to the value, importance and complexity of issues raised.

It seems clear that, before the review began, there were views

  1. Civil litigation was too expensive both to the parties and to the state.  It was to be anticipated that     proposals would attempt to drive these costs down.
  2. There was too much civil litigation in the courts.  Parties would be encouraged to look for alternative but appropriate means of settling their disputes to keep them away from the courts altogether.
  3. Existing methods of communication between the courts and the parties were out of date.  Alternative means of managing the flow of cases through the court system should be explored.
  4. Specialist judges might well be better both at managing the flow of particular types of case and of arriving at better results.  The days of the all-purpose judge at all levels could be numbered, especially given the preference that crime always receives over civil business.
  5. Top judges should not be dealing with trivial and low value cases.

Since the present Scottish Government largely accepted the recommendations of the Gill Review and developed them into the present consultation paper, it is pertinent to ask whether those issues have been addressed and problems solved.  Since the final decision is one for the Scottish Parliament it remains relevant to question whether the original views were accurate and whether the real problems are being addressed.  What will these proposals actually achieve?

Before trying to answer these questions, there are a number of wider matters to consider. 

It is suggested that the existing court system is defective because it would be recognisable to a Victorian lawyer.  It is being claimed that the existing proposals represent a once in a century (or even longer) opportunity to design a new structure fit for the 21st century and beyond.  In fact Lord Gill’s review made no such grandiose claims.  The review declared there was no opportunity to design a justice system from scratch.  Whatever changes were proposed would be super-imposed on the present system.  The system would remain one recognisable to a Victorian lawyer.  This should not be regarded as a bad thing.  If the modern Court of Session and sheriff courts began to take shape in the 19th century, they both have their roots further back in history.  Moreover, there have been many changes in courts, not just in practices and procedures, since Victorian times, even if the basic framework remains the same.  The proposals will not alter the fundamentals of the structure.

On the other hand Lord Gill definitely set out to try to drive the existing courts into a much more obvious pyramid.  The intention in the longer term was to arrive at a situation where the Inner House would be hearing relatively few cases arriving from the Sheriffs Appeal Court and the Outer House.  The Sheriffs Appeal Court in turn would be hearing a larger number of cases arriving from Sheriffs and Summary Sheriffs, where the vast majority of first instance civil business would be dealt with.  The perception or the picture painted, rightly or wrongly, is of an existing system where cases, many of them bordering on the vexatious, are flowing in an uncontrolled manner to the Inner House.  Meanwhile Outer House judges and their staff are said to be unable to deal with serious civil disputes expeditiously because instead they have to dispose of a large number of relatively low value and straightforward cases, mainly personal injury cases.  Giving parties the option to litigate either in the Court of Session or the Sheriff Court results in too many cases going to the former. 

Even if the reality is that far greater numbers of civil cases are presently dealt with in, and never get beyond the boundaries of, the sheriff court than ever begin life in the Outer House (and see below under reference to the Scottish Government’s own evidence paper supporting its Strategy for Justice in Scotland) or arrive at the Inner House on appeal from the sheriff court, there are certain issues which any practitioner in the Outer House of the Court of Session will recognise. 

  • Daily start of proofs or debates delayed while the judge deals first with sundry criminal business
  • Daily start of proofs or debates delayed while the judge deals first with sundry civil business
  • Proofs or debates unable to start because there are insufficient judges available to deal with the business
  • Large parts of the year (about 16 weeks) when substantive hearings are not fixed. 

Are these problems which can best be solved by shifting the overwhelming majority of civil cases out of the Outer House or are there other solutions?  In the sheriff court similar problems are experienced, with, in addition, delays in the conclusion of cases because insufficient time is allocated at the outset for proofs and other hearings to be completed at one sitting.

At the same time, there are pressures in the Inner House and Court of Criminal Appeal.  Procedures designed to ensure that only meritorious cases reach a full hearing, that hearings are not delayed for extensive periods and that as little court time as possible is wasted are combining to place increasing pressure on Inner House judges.  Is the answer the creation of a lower tier of appeal court and the erection of further barriers to appeals?

Looking back at some of the most successful reforms of the past 40 years or so, there appears to be one common denominator – they are all the result of rules and practices being changed rather than the courts themselves.  Here are some examples.

1.      Divorce cases.  The effective reform was not the shift to the sheriff court but removing the need for oral evidence.

2.      The Coulsfield reforms in personal injury cases, which largely keep cases away from court hearings altogether and have reduced the length of proceedings dramatically.

3.      Permitting the court clerks to deal with uncontentious business.

4.      E-motions.

It is interesting to note that many of the issues which led to the setting up of Lord Woolf’s review in England in the 1990s were similar to the problems identified in Scotland.  The principles to be applied to the solutions were also similar yet the method adopted was entirely different.  The focus in England was on the procedure to be followed.  The Civil Procedure Rules were the result – a unified code to be applied in all civil courts.  Although in Scotland we have edged towards having similar rules in the sheriff courts as in the Court of Session, the courts have remained separate and will continue to be so if the current proposals are implemented.

One problem which was identified by Lord Gill’s review and is acknowledged by the Scottish government’s consultation is the friction between civil and criminal justice created by the demands of each branch of the justice system for the same judicial resources.  However, neither the review nor the Scottish government has put forward any proposals which will resolve this problem.  It is clear that the problem has a significant impact both at first instance and at appeal.  In the first instance courts, criminal business (and sundry civil business) frequently delays the start of civil hearings.  In the appeal courts the sifting of criminal and civil business prior to the allocation of a full hearing may reduce wasted time at hearings but has instead added further procedural pressures to the timetable.  Lord Penrose’s review of Inner House business was not asked to consider in any detail the interaction between civil and criminal business.  It has to be said that the present consultation does not consider in any detail how competition for judicial resources in any of the courts will be handled.

There has been a reluctance to see greater specialisation in the Scottish courts.  With few exceptions (for example the judges in the commercial court of the Court of Session), specialist judges, such as preside over tribunals, are regarded as inferior to those with a general jurisdiction.  The current way in which the proposed office of summary sheriff is being discussed suggests that these judges will largely be expected to carry out specialist duties.  So far there has been no appetite for separating civil and criminal business or creating further sub-divisions and specialisations at a higher level.  The result, however, appears to be a haphazard and ad hoc allocation of resources, usually at the expense of civil litigants.  The case for separating the civil and criminal courts at first instance is becoming ever stronger.  Even if the appeal courts are not separated, maintaining a degree of separation within them so that civil and criminal resources are individually assessed and allocated ought to reduce the extent to which each interferes with the requirements of the other.

Courts rely on the quality of the representation of parties to arrive at correct decisions.  Specialist pleaders are an important feature of a quality justice system.  The proposals explicitly aim to limit the opportunities for specialist pleaders to exercise their skills as of right.  This means more parties will have to conduct their cases without the benefit of such representation and more courts will have to arrive at their decisions without the benefit of the best submissions.  All this points to a reduction in the quality of justice available in Scotland.

So we arrive at the present consultation with the additional backdrop of The Strategy for Justice in Scotland.  Amongst the Priorities are “Widening access to justice and advancing law reform” and “Transforming civil and administrative justice”.  However the supporting evidence paper tells us at chapter 3.7 –

“What works in enhancing access to and effectiveness of civil legal services…

  • Clients perceive that advice helps (partial or complete) resolution of problems…
  • Advice leads to an improvement in (i) client confidence in dealing with creditors (ii) borrowing behaviour and (iii) client legal capacity - all of which will help reduce the risk of clients experiencing similar problems in the future
  • Advised clients report improvements in mental and physical health and wellbeing and a reduction in stress levels and relate this directly to receiving advice…
  • Clients value the following general impacts of advice: (i) the impact the credibility of an adviser adds to their case; (ii) the impact of skills gained from advisers’ input; (iii) but clients also want reassurance they can return for further support if required
  • Clients value face to face advice and this delivery method has the most positive impact on health

What don’t we know?

  • At present, we do not know how many people with civil law problems would like or need help and advice and in what format.
  • The full extent of information, advice, support and representation services available, their nature, quality and cost.
  • How many people would like to access court but face barriers to it.
  • The effectiveness of court in resolving disputes
  • Levels of compliance with court decisions
  • What sorts of services deliver aspects of public legal capacity building and what are their outcomes.
  • The extent to which alternative dispute resolution is used and its efficacy.”

Chapter 2.3 of the evidence paper contains statistical evidence going back for around 30 years showing the number of civil cases raised in the sheriff court on the five year average measure falling from around 150,000 to 120,000 cases a year and cases in the Court of Session staying largely static at well below 10,000 cases a year since the mid 1980s.  These figures are supplemented by the annexes to the annual Report of the Scottish Court Service for 2011-12 showing a continuing decline in the numbers of civil cases and no significant increase in civil appeals to the Inner House.

The evidence paper contains little evidence relevant to civil justice.  The evidence paper acknowledges it has no evidence relating to substantial issues the current proposals will affect.  Such evidence as there is fails to support the impression that civil justice in its current format is placing an unacceptable strain on the system of justice in Scotland.

The focus of evidence gathering has been on criminal justice.  Audit Scotland has carried out a recent exhaustive review of criminal justice.  Lord Gill’s review, though nominally a review of civil justice, was substantially about changes in the delivery of criminal justice.

It is hard not to conclude that the Scottish Government regards civil justice as of relatively low importance.  Without cogent evidence, the Scottish Government should reconsider making major changes to the system, which are likely to be disruptive and expensive, as well as being detrimental to the principle of access to justice (as we shall see).


Chapter 1 Moving civil business from the Court of Session to the sheriff courts

There are certain concepts in the Scottish Civil Courts Review and in the Scottish Government’s consultation which create difficulty.

“Hierarchy”  The problem is said to be that the litigant has too much choice because the low level of the privative jurisdiction/exclusive competence of the sheriff court invites the litigant to raise cases in the Court of Session which are not worthy of its consideration.  However the evidence shows that there already is a very clear hierarchy with less than 10% of all civil cases being raised in the Court of Session.  Estimates suggest that the proposals would see as many as 75%-80% of Court of Session cases go to the sheriff court.  The proposals would therefore result in perhaps 1-2% of all cases being raised in the Court of Session.  This looks like placing top quality justice out of reach of all but a very few litigants.

“Efficient use of resources” No figures have been produced to suggest what savings could be made if the proposals are implemented.  It is conceivable that large scale reductions in the case load in both the Court of Session and the Criminal Appeal Court might permit a reduction in the use of temporary and retired judges particularly in the handling of criminal work, both first instance and appeal.  However, this does emphasise the point that civil justice will continue to be regarded as a low priority.

“Proportionate/disproportionate” The main basis for the proposal to increase the exclusive competence of the sheriff court is the analysis of 93 Court of Session and 94 sheriff court personal injury cases drawn from the period 2004-07 and submitted to the Scottish Civil Courts Review by one firm of solicitors.  It is said that it is disproportionate if the legal expenses incurred by one side or both sides combined exceeds the value of the settlement.  These figures showed that even in the sheriff court the majority of low value claims resulted in higher expenses than settlements.  However there was no evidence at all to compare the costs incurred with settlement values in other types of case in either the Court of Session or the sheriff court, so no conclusion can be drawn in general about the relative expense or otherwise of litigating in one forum or the other.  The analysis also provided no information about the negotiation process – what the initial offer was compared to the final settlement – and no comparison could be made about the value added by the use of one procedure or the other.  Most importantly, the analysis makes no comparison between the value of the settlement and the resources of the parties.  A £10,000 settlement would be equal to around 40% of the annual income of someone on average earnings but only 0.00002% of the annual income of a major insurance company.

“High quality advocacy” The Scottish Government believes that, at the same time as a specialist personal injury court is set up, litigants should be expected to rely on the services of generalists.  They would only be entitled to the services of specialist pleaders in the sheriff court in cases which are “truly complex”.  Alternatively, litigants will have to pay for these specialist services out of their own pockets irrespective of success or failure.  This will place a disproportionate burden on those with lower resources (see previous paragraph).  This will deny access to justice and impose an inequality of arms.

Finally, there is the question of how this new version of the civil justice system will achieve self funding status.  The Court of Session currently receives over £2,000,000 per year in fees from personal injury cases.  If that income is lost, either cases in the sheriff court, denied access to the Court of Session, will have to subsidise the cases which remain there, or the court fees charged to the remaining cases will have to be increased by very large amounts to make up the difference.

Q1.      Do you agree that the provisions in the Bill raising the exclusive competence and providing powers of remit will help achieve the aim of ensuring that cases are heard at the appropriate level?

We have already suggested that there is an existing hierarchy consistent with making the highest quality justice available in Scotland to only about 7-8% of parties.  It is not obvious that this is inappropriate in itself.  Reducing that number would risk the criticism  that the resources of the supreme courts in Scotland were only being made available to an elite.  According to the Scottish Court Service annual report for 2011-2012 only 153 cases proceeded to a hearing in the Court of Session during that period.  If that number was reduced to about 20-25%, each Outer House judge would be conducting only 1 or 2 hearings a year.  This is not going to encourage the belief that Scotland has a highly skilled, up-to-date and erudite judiciary.

There clearly is a view among those who have to defend the majority of cases in the Court of Session that they would prefer to defend those cases in a forum where the overall cost is lower.  The question for the Scottish Government has to be whether those views – from financial institutions and public bodies, including the Government itself – should override the demands of ordinary litigants for access to justice in the supreme courts of Scotland.  Audit Scotland noted in its overview of criminal justice in 2011 that a fundamental principle in a democratic society is separating the power of the state from the processes of maintaining and upholding the law.  Designing a system of justice which favours government, with its resources and ability to call upon and pay for the best quality representation, over the citizen risks offending against that principle.

If the Scottish Government is determined to proceed with the proposal to raise the exclusive competence of the sheriff court, it has to recognise that litigants in the sheriff court ought to have the right to equal representation as their opponents.  To balance the overwhelmingly greater resources of institutions and the state, ordinary citizens must have automatic access to the best representation.  That means automatic sanction for the employment of counsel – advocates and solicitor advocates – in sheriff court proceedings, particularly in cases where the opponent is an institution or the state.

The powers to remit raise a number of issues.  Historically the courts have been reluctant to remit unless it has been at the request of both parties.  If it is felt that a case has been raised in the Court of Session, which ought to have been raised in the sheriff court, the sanction imposed has been in relation to expenses at the end of the case.  The proposals envisage that the power to remit will be used more frequently.  However, the proposals set out in sections 81 and 82 of the Bill contain several features which are likely to give rise to difficulties in practice.

Section 81 contains two separate powers for the sheriff to remit.  The first is relatively uncontroversial.  Under subsection (2), provided the Court of Session would have had jurisdiction to hear the case in the first place, the sheriff can remit on the motion of one or more of the parties if the “sheriff considers that the importance or difficulty of the proceedings makes it appropriate to do so.”.  The second is more problematic.  This applies to cases which the Court of Session would not have had jurisdiction to hear.  Under subsection (4), if the sheriff, on the motion of a party or parties to such a case, “considers that there are exceptional circumstances justifying”, he may remit.  However, under subsections (5) and (6), the Court of Session has to consider there is special cause, having regard to the “business and operational needs of the Court”, before accepting the remit. 

We can see important differences.  In the first place, the grounds for remitting are different.  Under sub-section (2) they are that the proceedings are important or difficult.  Under subsection (4) it is exceptional circumstances.  Interpretation of these provisions is bound to cause controversy.  It will be argued that exceptional circumstances must mean something more than importance or difficulty, even that questions of importance or difficulty are irrelevant, since the legislation distinguishes between the two tests.  It is hard to conceive circumstances where a case was neither particularly difficult nor important but that were so exceptional as to justify a remit.  If the provision is to be retained the wording should be clarified.

In the second place, it seems extraordinary that the Court of Session would still be in a position to refuse remit under subsection (4), when the sheriff or perhaps the sheriffs appeal court has been persuaded that the circumstances are exceptional.  The potential for very considerable wasted time and expense is obvious.  This is likely to render the provision a dead letter as no party is likely to want to run the risk of the remit being turned down at the final hurdle, with a probable contrary finding of expenses for his pains.

Section 82 also raises difficulties.  The Court of Session is bound to remit a case to the sheriff court, unless there are special reasons for not doing so, if it appears at any stage of the case that the value of the case has dropped below the exclusive competence.  It may also remit if the nature of the proceedings makes it appropriate.  The Court is also empowered to remit even if neither party moves the Court to do so.  The sheriff court is also bound to accept the remit.  Adding these provisions to those in subsections (5) and (6) of section 81 gives the further impression of elitism if the Court of Session will be able to turn litigants away of its own volition at any stage of a case, if it decides the case is too time consuming, tiresome or whatever, to make way for more meritorious cases to be heard.

There are entirely different ways to tackle these issues.  Remits will be entirely disruptive and will inevitably lead to delay.  They will be entirely destructive of any docket system of case management.  They will also almost inevitably result in adverse findings of expenses one way or the other, simply adding to the cost of the case without enhancing the prospect of settlement or focussing the issues in dispute. 

Rather than attempting to pigeon hole cases at the outset, with contentious remit provisions, to move cases from one court to another, procedures could be designed making the allocation of the hearing in the case the point at which a decision is made as to the appropriate forum for the hearing.  This would require that both the Court of Session and the sheriff court were operating to approximately the same time table as well as the same rules.  There would be flexibility meaning that all contentious matters in a case did not necessarily have to be dealt with by judges at the same level.

Q2. Do you think that the Court of Session should retain concurrent jurisdiction for all family cases regardless of the value of the claim?

It makes sense for the Court of Session to retain concurrent jurisdiction in family cases involving children, since cases with an international element will need to be dealt with by that court.  Beyond such cases, there are already relatively few family cases in the Court of Session.

Q3. Do you think that the Court of Session should retain concurrent jurisdiction in any other areas.

We have no particularly strong views.

Q4. What impact do you think these proposals will have on you or your organisation?

It does seem likely that there will be considerably fewer cases litigated in the Court of Session since that is the intention of the proposals.  Inevitably that means there will be fewer cases in which those with rights of audience to appear in the supreme courts have the opportunity to exercise those rights.  The proposal should be balanced by guaranteeing sanction for the employment of specialist pleaders in the sheriff court.


Chapter 2 Creating a new judicial tier within the sheriff court

The proposals to create a three tier sheriff court are, with respect, becoming more and more of a mess.

To begin with, it is very hard to escape the conclusion that summary sheriffs are no more than a cost cutting exercise, though any savings may take many years to emerge.  Handing the summary sheriffs concurrent jurisdiction with sheriffs over all summary criminal business, all family business and all summary cause and small claim civil business (to be renamed simple procedure business) plus prospectively power to deal with certain stages of solemn criminal work and all for a reduced (and variable) salary does not appear to achieve much other than a reduction in the salary budget.  It entirely undermines the concept of hierarchy which is supposedly central to the proposals.  We do not agree with the proposal to create this third tier.

One of the criticisms of the existing court structure was that judges, in both the Court of Session and the sheriff court, were over qualified to deal with low value cases and with routine procedural issues.  However, the proposed qualifications for summary sheriffs are exactly the same as for sheriffs and virtually the same as for senators.

Since the Scottish Government’s consultation paper was published it has emerged that the summary sheriffs are now seen as likely being appointed to specialist roles.  However this has met with concerns that appointment to a specialist role at the lowest level of the judiciary will make it very difficult to advance.  If there is any desire to recruit younger judges, there will have to be a prospective career path.  Categorising specialists as at a lower level than other first instance judges with a broader jurisdiction also devalues the specialist skills those judges will be expected to bring to bear.  Where they have concurrent jurisdiction, the prospect is that the specialists may reach more correct decisions than their higher paid generalist colleagues.

Moreover the role of the Sheriff Principals in allocating specific cases to particular judges creates an issue in the event of an appeal to the same Sheriff Principal.  There will also be practical difficulties in sheriffs in the same sheriffdom sitting in first instance cases some of the time and in the appeal court at others.  Although this situation occurs in the Court of Session with ad hoc extra divisions containing one or more Outer House or temporary judges sitting to review the decisions of other members of the Outer House, it is not consistent with the concept of hierarchy.

The consultation also makes clear that part time sheriffs (and summary sheriffs) will remain a critical part of the structure, contrary to the wishes of the Gill Review.  Flexibility must be regarded as a more important characteristic.  That too is the main reason why the Gill Review argued against dividing the first instance judiciary between civil and criminal.  However that flexibility has led and will continue to lead to the squeezing of civil cases into whatever space is left by the criminal schedules, rather than being given their own allocation of resources.

Q5 Do you think that the term “summary sheriff” adequately reflects the new tier and its jurisdiction?

The name is to be preferred to “district judge”.  As indicated we do not favour the introduction of the third tier.

Q6 Do you agree with the proposal that the qualifications for appointment as a summary sheriff should be the same as that for a sheriff?

We have commented on the contradiction between the criticism of the current system that the judges are over qualified and the proposal to have the summary sheriffs equally qualified, presumably to allay fears that they would be under qualified or lack experience.  In practice most judges appointed in Scotland have many more years of experience than the minimum required.  Exceptions are few.  If the Scottish Government intends to create a career path for judges, it will have to encourage younger and less experienced lawyers to come forward and present them with opportunities to progress.  Even with more experienced practitioners, the possibility of advancement should not be ruled out.

Q7 Do you agree with the proposed competence of summary sheriffs in family cases?

The need or appropriateness for all judges at all levels to have concurrent jurisdiction in family cases has not been adequately explained.

Q8 Do you agree that summary sheriffs should deal with referrals from children’s hearings?

Q9 Do you think that in addition to summary crime, summary sheriffs should have powers in other areas of criminal jurisdiction?

Q10 Do you agree that the allocation of cases where there is concurrent competence between sheriffs and summary sheriffs should be an administrative matter for the relevant sheriff principal?

We have grouped these questions to gather because, as we have indicated, we see no reason to introduce a new third tier in the sheriff court.  Children’s hearings may well concern allegations of crime of a very serious nature.  The concurrent competence of sheriffs and summary sheriffs over wide areas of the existing shrieval jurisdiction means there will be a lottery for litigants.  Leaving sheriff principals to allocate case load is likely to lead to a considerable increase in administration for sheriff principals, who at the same time are likely to have a considerably increased appellate workload dealing with summary criminal appeals.   In addition there is the potential for a conflict between their administrative role and their appellate duties.

Q11 What impact do you think these proposals will have on you or your organisation?

None directly.  The absence of impact does not make the proposal any more appropriate.


Chapter 3 Creating a new sheriff appeal court

The principal objective of the proposed sheriff appeal court is to act as a cut out to stop cases getting to the Inner House or the Court of Criminal Appeal.  Is this desirable?  Even if it is, is it likely to be effective?

We have already observed that the combination of sifts or additional procedural steps in both criminal and civil appeals is markedly increasing the work load of Inner House judges.  On the face of it an appeal court dealing with case specific issues and leaving more important issues for the higher appeal court seems attractive.  A major drawback, however, is that cases which ought to be dealt with at the higher level are going to take a very long time to get there and create a great deal of extra expense in the process.

There are a number of recent cases which have arisen from summary criminal cases.  If these sorts of case are determined at the sheriff appeal court in the first instance, uncertainty will be created because it will be anticipated the case may go further to the Court of Criminal Appeal.  Meantime sheriffs will be bound to deal with matters in accordance with the ruling of the sheriff appeal court.  At the same time, cases being dealt with at first instance in the High Court may also be encountering the same issue.  What standing will the decision of the sheriff appeal court have there?

We understand that sentence appeals arising from summary cases presently occupy about one day a fortnight.  This type of appeal seems best suited to a sheriff appeal court, with the appeals being dealt with by sheriffs, who will already have had considerable practical experience of sentencing in summary cases, able to set down guidelines for all sheriffs and summary sheriffs.  However, we also understand that the bench in the Court of Criminal Appeal for such cases usually contains at least one temporary judge who is a senior sheriff or sheriff principal.  The creation of a new court principally to deal with sentencing seems unnecessary.

We also have concerns about representation in summary criminal appeals before the sheriff appeal court.  At present an appellant has to instruct a solicitor advocate or an advocate.  This usually means a fresh pair of eyes considering the merits of the appeal.  This frequently results in advice being given about the prospects, which in turn limits the number of appeals which would otherwise come forward.  The proposals suggest that there will be no automatic sanction for the employment of specialist pleaders in the sheriff appeal court.  If that is so, it is likely to have an adverse impact on the administration of justice.  Moreover, there is an issue with equality of arms.  If, as proposed, criminal appeals in the sheriff appeal court are dealt with centrally in Edinburgh, the Crown’s side will be likely to be handled by Crown Office with access to advocates depute.  The appellant, on the other hand, will have to make do with a solicitor.

On the civil side, there is currently no disquiet with the system of appeals to the sheriff principal.  Parties will elect to appeal to the sheriff principal, rather than the Inner House, as the situation arises.  Appeals to the sheriff principal have the merit of being relatively quick, local and considerably less expensive.

Q12. Do you agree that criminal appeals should be held in a centralised national appeal court?

Yes.  However we do not consider that there is any need to introduce an intermediate appeal court.  Existing pressures on appeal court judges ought to be capable of being managed in other ways, for example by allocating judges to either criminal or civil work alone at different periods.  We do not advocate entirely separate civil and criminal appeal courts, but existing problems seem to arise at least in part from the need to deal constantly with both types of cases at once.

Q13. Do you think that civil appeals should be heard in the sheriff appeal court sitting in the sheriffdom in which they originated?

We do not think there is any need to create a new appeal court to deal with civil appeals.  The existing system of appeals to the sheriff principal is working perfectly well.  If there is a problem with appeals arriving at the Inner House this ought to be capable of resolution by having a requirement for leave, though requirements for leave or sifting procedures do add to the workload of an appeal court.  The proposed sheriff appeal court would be likely to suffer from the same issues as the Inner House/Court of Criminal Appeal.  There is also a general question about due process.  Should courts be focussing on preventing substantive hearings taking place with barriers being placed before appellants trying to obtain access to justice?  The proposals contain a number of additional hurdles which are designed to restrict access.

Q14. Do you agree that the sheriff appeal court should be composed of appeal sheriffs who are sheriffs principal and sheriffs of at least five years' experience?

If there is to be a sheriff appeal court, it would be better to have full time appeal sheriffs, rather than to make up ad hoc courts of suitably qualified sheriffs.  That would be likely to have a significant impact on the organisation of sheriff courts right down the scale.

Q15. What impact do you think that these proposals will have on you or your organisation?

As noted, removing the right to representation by a solicitor advocate or an advocate in summary criminal appeals is likely to have an adverse impact on the administration of justice, give rise to an inequality of arms and reduce the amount of work available for specialist pleaders.


Chapter 4 Creating a specialist personal injury court

The Outer House of the Court of Session has effectively been operating as a specialist personal injury court.  With the introduction of the Chapter 43 procedures in 2004 following Lord Coulsfield’s review, the flow of cases through the court has become quicker and much more streamlined.  As before, the vast majority of cases settle, but they are settling at an earlier stage.  There are far fewer hearings relating to sundry procedural matters.  Electronic communications mean that it is no longer necessary to attend at the court offices to deal with all aspects of the administration of the case.  Documents and motions can be lodged or enrolled electronically.

Behind this also lies the expertise of the specialist practitioners, both solicitors and counsel (including solicitor advocates).  There is also the expertise of the judiciary when it is required to deal with a substantive issue in dispute.

If the Scottish Government is determined to exclude the vast majority of personal injury litigation from the Court of Session, then it should only do so if it replaces the Court of Session with something of equivalent quality.  Litigants in personal injury cases are currently by far the biggest customers of the Court of Session.  As Lord Woolf said in his review of civil procedure in England & Wales, a legal system “should be responsive to the needs of those who use it”.

A specialist personal injury court will only have the character of the existing system, if it replicates, so far as possible, the features of the present system.  This must mean that there is access to specialist pleaders for litigants as of right.  As we have said, to do otherwise is to hand the advantage to the institutional litigant every time.  That is entirely inappropriate in a democratic society.

The other important features of the present set up should not be forgotten.

It is suggested that two specialist judges would be sufficient to deal with all of the existing personal injury work which would come out of the Court of Session under the present proposals.  This suggestion was first made in the Gill Review.  No steps were taken to demonstrate that this is actually feasible.  Two Outer House judges could have been appointed to act as personal injury judges to see whether the workload could be managed by two judges without any adverse impact on current timetables.  Personal injury practitioners are highly sceptical that two judges will be sufficient.

Q16. Do you agree with the establishment of a specialist personal injury court?

Yes, provided it retains the features of the present system in the Outer House.

Q17. Do you agree that civil jury trials should be available in the specialist personal injury court?

Yes.

Q18. What impact do you think these proposals will have on you or your organisation?

As noted, removing the right to representation by a solicitor advocate or an advocate in personal injury cases is likely to have an adverse impact on the administration of justice, give rise to an inequality of arms and reduce the amount of work available for specialist pleaders.


Chapter 5 Improving judicial review procedure in the Court of Session

The proposals relating to judicial review are another example of the Scottish Government seeking to erect barriers to the courts rather than extending access to justice.  The consultation quotes from the Gill Review that hearings in judicial review “take up a disproportionate amount of sitting days”.  The object is therefore clearly to reduce that number.

Leaving to one side the obvious point that the proportion of sitting days in the Court of Session taken up by judicial review is likely to increase if 75%-80% of ordinary business is removed from the Outer House, the proposals themselves appear designed to increase rather than reduce the amount of judicial time taken up with this work. 

The Bill introduces a procedure for obtaining leave before the petition is allowed to be dealt with on its merits.  This can effectively take up to three stages, before a final decision is reached on whether the petition can proceed on its merits.  If the petition is refused leave or conditional leave, the petitioner is entitled to an oral hearing.  If the oral hearing results in refusal of leave or conditional leave, there is a right of appeal to the Inner House.  There is accordingly the prospect of a considerable amount of judicial time being expended, which presently would not be required.  This additional time must be balanced against the number of judicial reviews proceeding presently.  There does not appear to be any evidence of the number of petitions being brought which are obviously without merit.  Is this leave structure a sledgehammer to crack a nut?

The other significant proposal is the imposition of a time limit of three months “beginning with the date on which the grounds giving rise to the application arose” (section 27A(1)(a) of the Court of Session Act as prospectively amended in section 84 of the Bill).  Any time limit encourages controversy.  It is likely that whatever wording is used there will be cases where it will be unclear whether the application is in time or not.  However, we do not consider the presently suggested wording is either clear or fair.  Under this wording a prospective applicant could find that a decision affecting her had been taken more than three months earlier, about which she knew nothing and had no means of knowing, but would be unable to do anything about it.  The existing law on mora takes account of what the petitioner knew or reasonably could have known since it is necessary for the petitioner to be deemed to have acquiesced in the decision under challenge (Somerville v Scottish Ministers 2007 SC 140).  The proposed wording therefore not only introduces a time limit but also makes a substantial change in the law.  Since the apparent intention is simply to introduce a procedural requirement, the wording of the section should be clarified.

The three month time limit is short.  Although there is a discretion to extend the period, time bar provisions have traditionally been strictly adhered to in the Scottish courts and discretionary extensions rarely granted.  There has to be a risk that imposing a very short time period has the effect of increasing rather than decreasing the number of applications, since parties may feel they have to litigate rather than risk losing the chance to challenge.  The existing law has the benefit of allowing a more measured approach.

Q19. Do you agree with the three month time limit for judicial review claims to be brought?

As stated above, we have concerns that the three month period may be so short it encourages a higher number of applications, thereby defeating one of the objects of the proposed changes.  We also do not consider the existing wording in the proposed section 27A(1)(a) is sufficiently clear or fair to prospective applicants as it could be interpreted to mean time runs without the applicants knowledge of the decision or action under challenge.

Q20. Do you agree that the introduction of the leave to proceed with an application for judicial review will filter out unmeritorious cases?

We consider that the leave provisions may have the effect of increasing rather than decreasing the amount of judicial resources committed to judicial reviews

Q21. Do you agree that these proposals to amend the judicial review procedure will maintain access to justice?

The leave provisions are likely to place a barrier to meritorious claims as well as unmeritorious, as there will be additional costs associated with obtaining leave.

Q22. What impact do you think these proposals will have on you or your organisation?

None directly.  The absence of impact does not imply acceptance of the proposals as they stand.


Chapter 6 Facilitating the modernisation of procedures in the Court of Session and the sheriff court

While the existing section 5 of the Court of Session Act 1988 makes no reference to the Rules Council, there is no reason why the proposed section 5 should not make reference to the Scottish Civil Justice Council as section 86 of the Bill does for the purposes of rule making for the sheriff court.

The proposal to allow a single judge of the Inner House to dispose of an appeal on the basis the grounds of appeal are unarguable, with the right of a full Division to re-open the appeal seems a potentially over complicated means of dealing with “unarguable” appeals.  The sifting mechanism proposed by Lord Penrose was an alternative to a requirement for leave.  He considered that recommending such a requirement went beyond the scope of his review, though not the suggestion that some sort of sifting mechanism might be introduced.  At this stage any constraints which Lord Penrose may have felt limited the range of proposals he was able to make do not apply to the present consultation.

Sifting mechanisms may well result in the expenditure of considerable amounts of judicial time, as well as the expense of parties at taking a case to the stage of effectively a curtailed full argument on the merits.  A system based on a requirement to be obtain leave, may be a simpler and less complex mechanism.  There is no doubt that appeals, particularly from party litigants, do come forward which are entirely misconceived, but if the appeals are from final interlocutors, there is no means of avoiding a full hearing.  The object is to design a procedure which weeds out these appeals while allowing arguable cases to proceed unhindered.  A requirement for leave in all cases would impose added hurdles in every case, whereas the proposal would only be applied where the single judge identified the problem case.  On balance therefore the proposal is to be preferred.

Q23. Do you agree that the new rule making provisions in sections 85 and 86 of the draft Bill will help improve the civil procedure in the Court of Session and sheriff courts?

Changes to the Rules of the Court of Session should explicitly have been the subject of consultation with the Scottish Civil Justice Council.

Q24. Are there any deficiencies in the rule making provisions that would restrict the ability of the Court of Session to improve civil procedure in the Court of Session and sheriff courts?

Apart from the answer to Q23, no.

Q25. What impact do you think these proposals will have on you or your organisation?

None

Q26. Do you agree that a single judge of the Inner House should be able to consider the grounds of an appeal or motion?

We agree.

Q27. What impact do you think these proposals will have on you or your organisation?

None

Q28. Do you agree that the distinction between ordinary and petition procedure should be abolished?

There are historic reasons for the differences in procedure.  In practical terms petition procedure tends to be more flexible with fewer rules and fixed steps.  Although some of the language used may be archaic, the benefits of the procedure should not be disposed of lightly.  If the two procedures are to be merged, the advantages of petition procedure for the types of case in which it is used should be retained so far as possible.

Q29. Do you foresee any unintended consequences for this change?

See above answer to Q28.

Q30. What impact do you think these proposals will have on you or your organisation?

None directly.

Q31. Do you agree that the new procedure will ensure that courts are able to deal appropriately with vexatious litigants?

There is insufficient detail in the consultation document to be able to respond fully.  The existing procedure under the Vexatious Actions (Scotland) Act 1898 does require to be updated.  It requires the Lord Advocate to gather information and take action.  This can be a slow business.  Meantime the litigant in question can continue with vexatious behaviour, which is undoubtedly disruptive and may be costly to other parties affected.  It is to be preferred that detailed proposals are brought forward so that they can be examined properly to ensure that the rights of those whose behaviour is being criticised are limited only to the minimum extent necessary.

Q32. What impact do you think these proposals will have on you or your organisation?

None

Q33. Do you think that an order for interdict should be capable of being enforced at any sheriff court in Scotland?

Yes

Q34. Should interim orders and warrants have similar all-Scotland effect and be capable of enforcement at any sheriff court?

Yes

Q35. What impact do you think these proposals will have on you or your organisation?

None

Q36. Do you think that ADR should be promoted by means of court rules?

This is not the forum to discuss the merits or otherwise of different forms of dispute resolution.  There are those who are enthusiastic proponents of non-court based systems.  We agree with the statement of Dame Hazel Genn quoted in the consultation paper that “a well-functioning civil justice system should offer a choice of dispute resolution methods.”  We also agree with the final report of the Civil Justice Advisory group that court rules should “encourage, but not compel, parties to see k to resolve their dispute by mediation or another form of alternative dispute resolution, prior to raising a court action.”  We agree therefore that these alternative methods have their place.  We do not agree, ultimately, that parties should suffer some sort of penalty, imposed through court rules, for failing to enter into such procedures.

Q37. What impact do you think these proposals will have on you or your organisation?

None

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