Man with a mission

“The inevitable outcome will be major change, but what format it will take is still entirely an open question.”

With this summing up Lord Gill, the Lord Justice Clerk and the man in charge of reviewing the whole Scottish civil court structure, aims to woo the legal profession into responding as fully as possible to his team’s consultation on the options going forward, which runs until 31 March.

To be tasked to achieve in two years what has taken other jurisdictions up to 10, might almost fall within the Herculean category. But whether the former Scottish Executive, who appointed him, were simply looking for radical ideas, or wanted to put on the spot a critic of the present system since his days at the bar, they found the former chairman of the Scottish Law Commission ready and willing to take up the challenge.

Beyond tinkering with

The review team has at least not had to spend time identifying the problem. Their initial invitation for submissions, Lord Gill says, revealed virtual unanimity over the current weaknesses in the system.

“There is absolutely no doubt that civil litigation takes far too long. There is a loss of public confidence in the ability of the civil justice system to produce a just result, and every reason to think that judged by quality of outcome, our civil procedure system does not deliver value for money. These are very clear themes.”

Identifying a problem, of course, is not the same as coming up with the answer, and although the review sees a broad emerging consensus “that some modest tinkering is not going to provide an effective solution”, agreement ends there.

So what is the review likely to produce? “Your guess is as good as mine” would be one response, given the range of issues put forward in the paper – which even then invites other comments. For example, should we combine the Court of Session and sheriff court jurisdictions to create a single civil court, perhaps with the superior body dedicated to hearing appeals? Should there be a new class of junior judges to deal with routine procedural matters? What role will mediation play? What use can be made of IT, for electronic filing or otherwise? If, as appears to be the case, there is no “one size fits all” model of case management, what models are appropriate for what types of case? Is it practical or desirable to develop specialised courts, or procedures that help parties act for themselves? And not least, what rules on levying and recovering costs would maximise access to justice?

Court control

However Lord Gill offers some clues. A key point for the paper is that the court rather than the parties should decide what is a reasonable level of time and expense to devote to an action before it. This, he says, will certainly mean more active control of the progress of actions. “Whether the outcome is judicial case management or administrative case flow management, or a combination of both, remains to be seen, but it is unlikely that we would persist with a system where the progress of litigation is almost entirely a matter for the parties themselves.”

Could the courts decide the level at which a case should proceed? “That is certainly one of the major questions for the review. I doubt very much if there would be support for the idea that the individual litigant should have the last word on how an action will be tried. So the options are probably whether you have defined criteria of jurisdiction in the Court of Session and sheriff court with power to remit cases upwards or downwards after they have been raised, or whether all cases are received at some central point and allocated administratively in accordance with some clearly defined criteria.”

The paper even floats the possibility of a general requirement of leave to bring proceedings. Surely this would be impractical? Lord Gill agrees that this “is a very difficult proposal and one that would have to be thought about very carefully if there were support for it on consultation. But what may be a more straightforward question is whether there should be a requirement of leave in all cases at the appeal stage”.

One system or two?

One undisputed issue is the effect on the civil courts – at all levels – of the priority given to criminal business. Some share Sheriff Principal Bowen’s view (Journal, February 2007, 17), that a complete split of the two types of business is the way forward. That is certainly one option, but Lord Gill is clear that it is not an inevitable conclusion. For one thing, he admits to needing fuller information as to the impact of summary crime on the proper running of the sheriff civil courts. And another idea put forward is a new mid-level of criminal judge, similar to a “ticketed” circuit judge in England, to handle the majority of serious prosecutions, “and in that way enable the Court of Session to become a forum that litigants would seek rather than avoid”.

Big changes could also take place behind the scenes. Do the size and population of Scotland justify the existing system of sheriffdoms, or should the various administrations be unified into a national sheriff court? Lord Gill emphasises that this is a different question from the location of courts, or the principle of appointing sheriffs to specific jurisdictions – but it raises sharply the future of our sheriffs principal.

At the same time he floats the idea of a lower tier of judiciary to handle most procedural business, comparable to the masters in the English High Court: “It’s really all a question of putting expensive resources to the best possible use.” A continental-style career judiciary, however, appears to be off the radar.

The value proposition

Echoing the reports that paved the way for the review, the consultation flags up proportionality and value for money as key principles. Generally speaking, in other words, lower value cases should follow simpler procedures to prevent costs getting out of hand. But as the Lord Justice Clerk recognises, things are not that simple.

“I would say that there are three things the public interest requires: litigation should be conducted expeditiously; it should produce reliable justice in which the public have confidence; and it should be conducted economically. When you then apply those general aims to your review of the options, you really have to consider first what is the appropriate sort of work that the highest civil court should be doing, then what should the primary civil court – the sheriff court – be doing, then whether there should be a third tier of civil justice for perhaps less significant cases. Value is one indicator of where a case should go, but not the only one. For example the public importance of the case, the novelty of the point of law, the sheer legal complexity of it. If you applied a rigid criterion of value, you might find that cases like Donoghue v Stevenson would never see the light of day.”

One might think that a major obstacle to proportionate costs at the lower end of the scale is the need to rely on a privately funded legal profession. But his Lordship does not necessarily accept that the system has to be designed to operate without lawyers to a greater extent than at present, especially since any lower tier court might have jurisdiction in family matters – “of huge importance to people’s lives”, he observes. “I think there could be a world without lawyers only in the event that litigation is replaced by mediation.”

The paper treats that last subject as a very open question. Should the court encourage mediation? Require it? In some other way facilitate it? And if so, how and at what stage? Who should pay? To these Lord Gill adds: “One idea we will be considering is whether in minor disputes, there would be scope for training sheriff clerks in the techniques of mediation, and making their services available as part of the overall court administration in such minor cases.”

Wider issues

Hand in hand with the question of cost is legal aid availability, but that is beyond the scope of the review, as is the major question of government policy in trying to cover court costs through fees charged to litigants. That, however, does not prevent the consultation paper stating pointedly that a good civil justice system must be adequately resourced.

Lord Gill, while conceding that current methods of conducting litigation lead to wastage, insists that cost comparisons between the present system and any new proposals are not helpful. “The system is already grossly underresourced. The Court of Session and High Court would have come to a halt long ago were it not for the goodwill of judges in working far beyond what can reasonably be asked of them, and I have little doubt that the same could be said of many sheriffs too. So comparing the service the courts provide with the resources devoted to them, it is quite obvious that the system is not adequately funded.”

One final topic he is keen to air is party litigants. “The number of them has increased extraordinarily in the last decade. They cause untold problems to the system.

I will be very surprised if our review does not result in a much greater degree of judicial control over party litigants.” Though he has sympathy with those who find themselves unwillingly in that position, he has in his sights “the unreasonable party litigant who pursues a hopeless case, and the recreational party litigant who actually enjoys litigation as an activity”.

Recent reforms in England and Ireland are being studied with interest, but we are assured that there will be no wholesale importing of solutions. Asked, however , what features of the present system he thinks are working well and should be kept if possible, Lord Gill simply comments “I’d like to see the consultation responses!”

THE TEAM AND THE CONSULTATION

The Review began its work in April 2007, when Lord Gill was joined by the hon Lord McEwan, Sheriff Principal James Taylor and Sheriff Mhairi Stephen on the project board.

The board is assisted by a policy group comprising individuals with particular knowledge and expertise in various aspects of civil justice. “They have a wealth of insights into the practical side of the review. They take a very practical approach to assessing the value of the various ideas and options”, Lord Gill comments.

Administrative and research support is provided by a review team. “I am lost in admiration for the efforts of the review team, especially in enabling us to publish a consultation paper of this quality in so short a space of time. It’s a demonstration of their commitment that they were able to do this.” He adds: “The content of the paper owes a great deal to the expertise and enthusiasm of the members of the policy group; they are largely responsible for the various ranges of options put for the various topics. And I’m indebted to the members of the board – it’s very time consuming for them and quite demanding. Their willingness to participate gives me considerable confidence that we should be able to provide a report with firm proposals in the early months of 2009.”

A link to the consultation paper can be found at www.scotcourts.gov.uk/civilcourtsreview . Responses are requested by 31 March, after which the team “may conduct more specific consultations on individual topics before proceeding to our conclusions”.