Engine overhaul

“The main achievement of the working party report was to strike a balance between the very clear agenda of the consumer lobby, and the legally qualified members with experience of the practicalities of cases involving party litigants.” 

George Way, Convener of the Society’s Civil Procedure Committee and one of two Council members on the working party (along with Professor Alan Paterson), feels that all those who took part gained in understanding of the perspectives the other members brought to the table.

Taking in business, public authority, STUC and consumer group as well as practising lawyer and judicial representatives, the working party was set up with funding from the Nuffield Foundation to investigate the case for a thoroughgoing civil justice review. An early problem it uncovered was a lack of empirical evidence in key areas, such as the overall cost of running the system as well as the time and cost of individual cases. Its deliberations fuelled by a series of seminars each led by an outside expert – “the engines for the thought processes of the Group”, says Way – the working party calls for six issues in particular to be the focus for any review.

Chief among these is the disproportionate costs of litigation, especially for lower-value claims. But high on the list also are the disruption of civil cases due to the priority of criminal business, the potential benefits of more specialised courts or judges, whether to increase the case management role of the courts, payment arrangements for lawyers including fixed fees, and increased enforcement powers.

Lack of involvement

Lawyers would probably identify most of these for themselves, but George Way admits to becoming aware through the Group’s work of other issues that he agrees should be addressed at the same time. In effect, he says, people don’t feel satisfied by the legal process even when they have come out successful – a trait that seems more marked in Scotland than elsewhere.

Particularly in those areas where the public are very much involved in their own case, he adds, the system “needs to make people feel that they have a direct involvement, that the procedures are facilitative rather than related to the way lawyers think. That’s why Lord Coulsfield was looking at the adversarial system. He promotes in the report a real sense that the adversarial system may no longer be sustainable for certain types of dispute”.

The judicial mindset

At the same time Way recognises that there are limits to how far we can expect our present judiciary, trained to hear the parties’ cases presented for them, to embrace a wholly different approach to their function, and that developing the sort of structure within which judges feel comfortable performing a more interventionist role is very much a long term project.

“I personally think it’s quite difficult for sheriffs to be expected to switch on and be wholly impartial in criminal cases, or try to balance the parties’ interests in family cases, and suddenly to be told, by the way, you’re on small value claims for the next two weeks and you’re expected to get in about there and try and run the whole case yourself. I think it’s multi-tasking and it would require a completely different approach to the judiciary from the ground up. I think that’s a 20 year project creating a career judiciary. It’s a step way too far to expect the same people to be so schizophrenic.”

That said, the working party canvassed options that would not require such a fundamental shift. A judge at first hearing, for example, could be more proactive with parties without legal representation, assessing their state of knowledge and preparedness and advising what they need to produce at proof to support their case, but a different judge hearing the evidence at that stage would be entitled to remain detached.

Again, many lower-level disputes, for example in housing cases, could have the facts investigated by some sort of adjudicator or arbiter at first instance. Only where true legal issues arose would the case be referred to the sheriff for a ruling.

Who pays?

Way was impressed by a 1998 study of the small claim system by Elaine Samuel for the then Scottish Office, put before the working party. “She made the very valid point that access to the courtroom is nothing the same as access to justice. Letting people in through the front door more readily is window dressing. The real access to justice is people’s ability to achieve an actual objective within the civil justice system – to vindicate their rights.”

That leads naturally to the perennial question of cost, one recognised by the working party as of growing concern in many jurisdictions other than Scotland. On this front the report acknowledges the unpredictability as well as the level of costs as a deterrent, briefly canvassing fixed cost systems and an end to the recoverability rule as possible issues for a review. “The spin which appeared in some of the press was that it was about lawyers’ fees”, says Way. “But the question that we were putting for the review was, were there situations where the issue of how costs were going to be recovered was a genuine barrier to people seeking to vindicate their rights, and if so, what steps should be taken.”

“However the system is structured, it is paid for either by litigants or by taxes”, he points out, adding that if solicitors were unable to recover costs, fewer would appear and more demands would be placed on the courts. If contingency fees were allowed, damages awards would be likely to rise in response, and with them insurance premiums. “But all bets are off in a review. If it’s clear that more people would bring reparation actions through solicitors and not be dragged into signing up to unregulated claims companies if we abolished the rule against contingency fees, then why not?”

Commercial concerns

Another important fact which can readily be lost sight of in a consumer-centred debate is that a very small percentage of actions are brought by individuals. For commercial companies and local authorities alike, “the small claims system is seen as their major weapon to obtain the next stage of enforcement”, Way notes. “If that’s the case, do you really need the full panoply of a dispute resolution system just to get a decree for enforcement?” If people have ordered something via a catalogue and find they can’t pay, is it fair to add £150 or so in expenses when the debt is pursued, he asks – pointing out that Austria, for example has a fully automated, computerised debt summons issuing system. This is free to use, hardly any cases are defended but no costs are added. “That’s the kind of thing we felt it important to look at – to get these cases to the next level of enforcement for some people whilst making the defended system accessible if people really want to have a go.”

Next steps?

The report’s proposals, he states, reflect the discussions within the Civil Procedure Committee. For example the Society supports an increase in the present small claim limit; the report describes the £750 ceiling as “clearly inadequate” while maintaining that any increase should be discussed in the context of other procedural changes.

In its closing remarks the report comments: “What we have found is that there are a range of problems, some very significant, which have proved intractable in the past and which seem to us to require a fresh examination based on a thorough investigation… We have not attempted to prescribe how the review body should be made up, or how it should proceed. These are matters for the Scottish Executive… It is sufficient for us to repeat, as is obvious, that any review should be open to fresh thinking, and that it should have the authority and independence to give weight to its conclusions.”

The Executive, while pointing to its strong civil justice programme and affirming that the report will help identify where further reforms are needed, has yet to indicate that it will take up the recommendation for a wider review.

The working party’s report, “The civil justice system in Scotland – a case for review?” can be viewed, in summary or in full, at www.scotconsumer.org.uk/publications/reports .

SEE YOU IN COURT?

Three practitioners with differing views suggest where the focus of reform might fall

Is it possible to devise a judicial procedure for resolution of lower value disputes that does not involve disproportionate costs? Not according to the comments received by the Journal, though the contributors differ as to the way forward.

Ranald Lindsay, Dumfries-based sole principal and solicitor advocate, is clear as to the pivotal role of a qualified legal adviser. “The bulk of the cost of a case is taken up with investigation and liaison… Whatever procedural reforms are suggested, it is highly unlikely that they will be able to eliminate the need for the solicitor to know more about the case than the client does, nor will they eliminate the necessity for a solicitor to have to translate technical and highly developed concepts of law and evidence into terms which lay people can understand sufficiently to give informed instructions.”

For Glasgow solicitor and newspaper columnist Austin Lafferty, court actions are inevitably costly because they bring out the worst in people. “Litigation breeds cost, delay, and brinkmanship which all militate against a smooth low-cost system at any monetary level.” Or as he puts it: “Two pigs will fight over an acorn.”

Alistair Bonnington, solicitor to BBC Scotland and an honorary professor at Glasgow University, agrees that there are serious disincentives to pursuing an action even of moderate value. “They eat up a substantial amount of time and, if you are a working person, this in itself is a huge problem. In addition, the amount of money recoverable by way of expenses will not cover the legal costs you incur in achieving success in your claim.”

Bonnington takes issue with the view that all cases require a similar level of professional input. “Even the simplest cases are complicated by excessive legalism in the small claims and summary cause court,” he maintains. “The instinctive reaction of the lawyer to any given situation is to explore all possibilities very fully. Lawyers would say that is fairness. The public might say it was providing a Rolls-Royce service when something a lot simpler is what is truly needed.”

Serious temptation

Ranald Lindsay warns against the temptation among some policymakers to expect solicitors to do the same work for less money.

“This is the easy solution, which, unfortunately, many of my colleagues suspect is the easiest option for the powers that be and the one that we are sleepwalking into: make the lawyer fund the case.” He fears that working at a cut-price rate will result in corners being cut, more complaints or claims and higher Master Policy premiums – not to mention making court practice even less attractive at a time when it is already difficult to recruit younger lawyers into that line of work, and ultimately impacting on access to justice

Both he and Austin Lafferty agree that the person choosing to go to court should be prepared to put up some money to assert their rights. Lafferty believes that costs should be “ring-fenced and funded in advance by the pursuer putting a deposit in court – call it caution if you like – as the rule rather than the exception”. Lindsay points up the contrast between people’s willingness to spend thousands on intangibles such as a wedding or cosmetic surgery, and their reluctance to pay “a fraction of the cost of their wedding to get them out of the situation the wedding got them into”.

The case for avoidance

So what are the alternatives? “We should do anything possible under the sun to keep cases out of court”, says Lafferty. “Have you ever met anyone – victor or vanquished – who has enjoyed their day, or days, in court?”

Alistair Bonnington believes the economic arguments are equally strong. “For the reason of cost-cutting alone, I would have thought there is a strong economic argument for the state to provide some form of no-cost dispute resolution procedure. This would be in the interests of the judiciary and the legal profession, as well as in the public interest.”

“I would have thought a proper cost analysis would show that the small claim/summary cause courts cost substantial amounts of money”, he suggests. On this point his views echo the comments in the August Journal from Govan Law Centre’s Mike Dailly, who would take the cases forming the great volume of lower court business – debt cases and tenancy disputes – right out of the sheriff court and into specialist tribunals, thus freeing up shrieval time for other disputes and substantially cutting delays.

Perhaps reflecting George Way’s observations about adjudicator-type individuals taking first-instance responsibility for lower-level disputes, Bonnington also observes: “If the litigants were moderately intelligent, I don’t see any reason why this kind of work could not be done without the presence of legal representatives on either side. If a person was old or otherwise infirm, they could be represented by a lawyer or, perhaps more sensibly, by an articulate friend… An arbitration/mediation role could be taken by the judge, who I envisage as being perhaps a part-time low-level judicial appointment. Someone lower down the tree than the sheriff, in other words.

“There would be no award of costs on either side. I think that is the only way to make such a system workable. There would be provision for stopping cases if people were abusing the system, and for throwing cases out if they really were not sufficiently important to have a court deal with them.”

Rough justice?

Once again Ranald Lindsay is more sceptical about the prospects for successfully reducing formality in this way. “I suspect that much of the pressure for this comes from those [policymakers] who feel it is ‘safe’ to push cases such as this through on a rough-and-ready procedure”, he states. “Such measures usually only mean that certain people – usually the poor and the vulnerable, to whom ‘lower value cases’ are disproportionately important – simply have to make do with a second-class system of justice.”

Nor does he see mediation as providing a significant answer. “Perhaps I have the wrong sort of practice, or I work in the wrong part of the country, but I tend to find that, if clients are open-minded or pragmatic enough to consider mediation, then a couple of decent solicitors will have had the case settled before it even gets that far.”

Adversarial issues

Lindsay shares the concerns of the judicial members of the Coulsfield working party over compromising judicial independence through having the judge take a more proactive role. “With the best will in the world, one cannot investigate a case without becoming involved even in some small way. That is why we all accept quite readily that we are partisan”, he maintains, adding: “The adversarial system suits the mindset of the public, who generally regard court cases as a competition to beat the opponent.”

Lindsay believes that while litigants should be asked to put their money where their mouth is, success should be better rewarded. Increasing the rates for party and party accounts, and altering the basis for taxation to what is “advisable” rather than “necessary”, with the loser having to persuade an auditor why they should not have to pay for a particular tranche of work, is his formula for encouraging people only to litigate if an issue is of real importance to them.

Austin Lafferty, by contrast, believes we could gain from changing the basis on which cases are conducted in court. “The adversarial system with a one-sided onus of proof can lead to very unfair results”, he asserts. “Investigation by the bench would either enhance or be a neutral factor – unless you get the odd sheriff who thinks he/she knows better than anyone what the case is about and prejudges it. Can you imagine such an unlikely event...?”

Where the buck stops

Alistair Bonnington remains resolutely of the view that the legal profession has to take collective responsibility. “What is perfectly clear is that the present system does not work. Most people simply write off debts below certain figures. I have always taught students that 97% of law might as well not be there for 97% of the population because Scottish access to justice is so disastrously poor. I see this as an aspect of the continuing failure of Scots lawyers to provide a proper remedy for the public.”

No stranger to controversy, his comments may be over-dramatic – but the need for reform is recognised on all sides, and in the absence (so far) of an Executive commitment to a wide-ranging review, there is a gauntlet waiting to be taken up.