Where have we come from, where to next?

This conference on "delivering excellence in Scotland's civil justice system" is being held in the light of the consultation paper published by Lord Gill's Civil Justice Review. I would start by paying tribute to the huge amount of work that has clearly gone into the preparation of the paper and to the way in which it has provided so much information and helped to focus so many issues.

In the short time available, I cannot hope to live up to the title of my address, and can really do nothing more than touch on a few points which occurred to me when reading the consultation paper and some of the responses to it. Given my own personal experience, I shall concentrate for the most part on the Court of Session. But I certainly do not overlook the fact that the various employment, social security and other tribunals are, in many ways, the front line of the civil justice system for most people in the United Kingdom today, while the sheriff court, of course, handles the bulk of traditional litigation in Scotland. Nor does the fact that I do not address them specifically, mean that I am unaware of the very great problems which people encounter as a result of the high cost of litigation and the substantial reduction in the availability of legal aid. These are plainly material factors.

The remit of the Review does not extend to the criminal justice system. But the authors of the consultation paper have recognised - in my view, rightly - that many of the problems of the civil justice system are bound up with the demands of the criminal justice system. It might therefore have been preferable if the formal remit of the Review had covered both aspects. But that may not matter too much in practice since it can be expected that any proposals affecting the criminal justice system which Lord Gill's team produce will have been carefully considered.

It seems to me that the Review really has to confront two types of issue: first, there are fundamental issues about the nature of the civil justice system, and, secondly, there are more mundane practical questions about the delivery of legal services by the courts and the lawyers who appear in them. Because of time constraints, I shall pay more attention to the practical issues, but, in a way, the more fundamental issues are not only more difficult, but must shape the answers to the practical questions.

A last resort?

The consultation paper itself poses a very basic question when it asks whether the policy should be that courts should be regarded as a resource of last resort. Perhaps wrongly, I have the impression that the authors would like the answer to be in the affirmative. In other words, everyone should be required to go through some process, such as mediation, before they go to court, in the belief that, by that procedure, they would, hopefully, settle the dispute without engaging the court system. There are elements of that approach in the Woolf procedural reforms.

While I see the case for extending the use of pre-litigation protocols, I confess that I am rather suspicious of any approach which treats the courts and judges as something to be avoided if a substitute can be found. That does not seem to me to be the kind of society which is guaranteed to citizens of the United Kingdom by article 6(1) of the European Convention on Human Rights: "In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." Note the last words, "established by law". Doubtless, the article is subject to interpretation, but fundamentally it envisages that the state must provide an independent and impartial tribunal established by law to which we can resort to have our civil disputes determined. Of course, if parties can settle their dispute, so much the better - they know that as well as anyone. Of course, if they want to use the modern miracle of voluntary mediation, they are free to do so and not to trouble the courts. But obliging parties to engage in some form of mediation, whether as a precondition to going to court, or as a result of compulsion by the court at some stage in the court proceedings, seems to me to be rather contrary to the spirit of the guarantee in article 6. I note that Dyson LJ has expressed a somewhat similar view.

But there is no need to explore that particular issue since, leaving the Convention on one side, the provision of independent tribunals - courts - for the determination of civil disputes is surely to be seen as just as vital to society as providing independent tribunals for determining criminal accusations. It is not an optional extra. Naturally, that leaves open what form any independent tribunal should take and the availability of resources is a relevant factor when considering that question. But I see no good ground for discouraging the use of the court system which should, one would have thought, be the best vehicle for achieving justice. Achieving justice, not simply getting a result, is what the policy aim must be.

Given the costs of litigation today, the state does not need to discourage people from going to court. Most individuals are already only too well aware that courts are expensive places and that, if you are financing the litigation yourself, you should think many more times than twice before getting involved in them. So the incentive to find some other way of resolving disputes is already there. There would be more of a need to discourage people from going to court in the unlikely event of the court system being free or so cheap that they were liable to use it irresponsibly. As matters stand today, if people or companies come to court and the litigation is to be conducted by lawyers and can be financed, the courts should treat litigants as responsible adults or responsible businesses who, with the help of their legal advisers and, in particular, their insurers, can be expected to judge their own best interests. The justice system and the courts should not be a branch of the nanny state, professing to know better. If adults or businesses have a dispute which they cannot resolve and they and their lawyers want to have it resolved by a judge, then, provided the case is properly conducted, the judges should respect their choice and get on with judging the issues as efficiently as possible. That is what the judges are paid for and they have the power to award expenses as a means of penalising any abuses of the system.

The need for litigation

Moreover, society actually needs litigation. If you regard it as an evil, it is, at the very least, a necessary evil. It is the way that we all find out how the law applies to everyday situations and the decisions of the judges form the basis upon which lawyers advise their clients. Unless there continues to be a stream of litigation with decisions of high quality from the courts, then individuals and businesses will lack guidance on all kinds of everyday situations. If I buy a piece of equipment and it does not work, but the seller offers to repair it, what are my rights? A difficult point, made somewhat easier, it is to be hoped, by the determination of two Scottish businesses to carry their dispute about a piece of farm equipment worth about £3,000 all the way from Jedburgh Sheriff Court to the House of Lords. The parties actually deserved not criticism for failing to settle, but the gratitude of anyone who advises consumers, from CABx onwards. Whether they realised it or not, the parties were performing a considerable public service.

That was a sale of goods case, but the need for decisions does not arise only in traditional areas of private law, such as contract or delict. It is just as important to all kinds of aspects of public law, which is now the growth area in litigation: public law disputes of various kinds are responsible for much of the increase in statutory appeals to the Inner House of the Court of Session. The Data Protection Act is an obvious example - along with the United Kingdom and Scottish freedom of information legislation. Only a line of authoritative decisions on such legislation is ever going to put flesh on the very abstract statutory bones and show how the system is actually meant to work in practice. So, many of the decisions of the courts perform a vital service for members of the public who would never dream of going near the courts, but who might want, for example, to obtain some information from their local authority which that authority was reluctant to give. In my view, this perspective on the function of litigation - which is, of course, recognised in the consultation paper - is very important indeed. In the field of public law, it may be that a change to the title and interest to sue requirement, in order to allow representative bodies to raise judicial review proceedings, would bring benefits to members of the public who could not afford to raise proceedings themselves.

As I have stressed on more than one occasion in the past, unlike in England before the Woolf reforms, looked at from the standpoint of the healthy development of our civil law, the problem in Scotland is not that we have too many, but that we have too few cases. Especially in an era of devolution, where more statutes may be unique to Scotland, it would in my view be bad public policy positively to discourage resort to the very courts whose decisions could provide the necessary guidance on the interpretation and application of those specifically Scottish statutes. If the Scottish courts are not to provide that guidance, where in all the world is it to come from?

First instance

A related issue is the need to have a civil justice system which encourages the emergence of lawyers with the specialist knowledge which clients need and demand. The expertise of many Scottish solicitors and counsel in the field of personal injuries law is obvious. But it is not accidental: it has been developed because of the system under which so many cases have been taken to the Court of Session. All those concerned have a familiarity with that area of the law which is, understandably, not matched by those who only deal with such cases infrequently. When considering proposals to divert much of that litigation to the sheriff courts throughout Scotland, we have to count the cost of potentially losing this concentrated body of expertise. The aim must surely be to encourage the development of a civil justice system which, inter alia, promotes the growth of expertise among practitioners in all kinds of fields. How this aim is best achieved is, in my view, an important question to be considered when formulating any future strategy.

Like other ancient countries, we have a court system which has not been planned, but has grown up over time. That explains, for example, why the jurisdictions of the Court of Session and the sheriff courts overlap to such a degree. But that very overlap - and the possibility of change - requires us to confront very basic questions about why we have a Court of Session and the sheriff courts. What is the difference? What is it that you get from the Court of Session that you don't get from the sheriff courts? What is the difference between the job of a Court of Session judge and a sheriff? Why is one paid more than the other? Exactly the same questions arise, and have to be confronted, in the sphere of criminal procedure.

In the end, the only respectable explanation for the differences must be the simple one that more is to be demanded of the Court of Session and High Court judges. Where the jurisdictions of the two courts overlap, the Court of Session judges are expected to produce a superior output. This may indeed mean that they have to work longer hours. But, fundamentally, it means that, overall, the Court of Session judges will produce better decisions because they are, overall, of a higher quality than the judges in the sheriff court. That is quite consistent, of course, with the view that some sheriffs are fully capable of holding the office of a judge of the Court of Session - and with distinction. I need only cite the example of Lady Cosgrove. Unless the basic position as I have stated it is correct, then it makes no sense whatever to have a cadre of more highly paid judges in the Court of Session. So the system for the selection of Court of Session judges should be aimed at ensuring, so far as possible, that the very best people are appointed. By that, I mean the most able, intellectually and legally, the most skilful members of the profession - whether men or women, black or white, straight or gay, sheriffs or practitioners, it does not matter and no preferences should be given to members of any group.

What should the Court of Session judges do? There have always been siren voices - sometimes, within the Court of Session itself - suggesting that the Court of Session should be an appeal court only. I would reject any such suggestion.

There is, of course, room for discussion about the level of claims which should be brought in the Court of Session. Nevertheless, I am quite sure that there should continue to be a first instance court to which people can take their case in the expectation that it will be dealt with, straightaway, by a judge who is one of the best legal minds in the system. That is, unquestionably, the position in England with the commercial court, the companies court, the administrative court dealing with judicial review etc. Precisely the same must apply in Scotland. Unless that remains the position, the Scottish court system will not be able to offer the standard of service which businesses expect from courts all over the world. To say to such clients that they must take pot luck with a judge who may not be of the highest standard is a recipe for a second-rate system which will not stand comparison with the best in the world. Those with a choice will, quite rightly, take their business elsewhere. Surely, no one would want that. The real question is whether there should be further specialisation along the lines already established for commercial cases. Consideration could also be given to the feasibility of Outer House judges conducting proofs in Glasgow or elsewhere if that would improve the service the court can provide.

Any suggestion that the Court of Session should do purely appellate work has the most far-reaching implications for the whole of the court system. Such a change would tend, I believe, to discourage, rather than encourage, the growth of expertise - a topic I have touched on already. Moreover, it is surely fanciful to assume that, under such a system, advocates or solicitor advocates could be appointed to the Court of Session straight from the bar. The reality is that it would not be possible to have an appeal court manned largely by judges who had never had any previous experience of judging at first instance. So, in effect, any proposal for a purely appellate Court of Session is a proposal for a unified court system in which all new appointments would have to be made to the lower courts throughout Scotland. That is a possible system, of course, but I very much doubt whether it would attract the best practitioners to the bench. Moreover, would appointing the best lawyers in the system to some first instance court in a remote part of the country with relatively undemanding work really be the best use of his or her talents or the best way to promote job satisfaction? Doubtless, there may be answers to these questions, but what matters is that removing the first instance jurisdiction of the Court of Session would entail other very far-reaching changes, the desirability of which would have to be separately assessed.

The burden of administration

But assume that a case is taken to court. It is vital that the dispute is determined efficiently and with due despatch. That can only happen if the judges, at whatever level, are able to devote themselves to the task for which they are appointed and paid - judging. Although it is not a topic for discussion today, I confess that I have always been very sceptical of the changes made recently in England under which the judges undertake so much of the responsibility for running the courts. I do not know exactly what the tangible benefits of the change for the public have proved to be. I do know, however, that quite a lot of judges spend a really significant part of their time on administration rather than judging - as they will be the first to tell you.

The Judiciary and Courts (Scotland) Bill before the Scottish Parliament proposes to introduce a somewhat similar system - based, as I understand, on an Irish model - with responsibility for running the courts removed from the Scottish Ministers and vested in the Lord President. The proposal has the support of the judges. It is for the Parliament to determine whether it is a good idea, in a democracy, to remove the primary responsibility for running such an important public service from elected ministers, responsible to the legislature, and pass it to unelected judges.

But leaving that fundamental political point on one side, it may be asked whether the resulting system is likely to be more efficient overall and so to provide a better service to the public. The Lord President already has a very substantial administrative load, the Lord Justice Clerk a lesser load. Under the new system it seems likely that other judges would also have new responsibilities for aspects of administration. Some judges are better administrators than others, but the simple fact is that most judges have no real training or experience in administration. It is a matter of luck if they turn out to be good both at judging and at administration. Speaking personally, as Lord President, I should have been cautious, to say the least, about taking on additional administrative responsibilities in case those extra responsibilities did indeed eat into the time available for my judicial work. Under the current system in England, it is not uncommon to find senior appeal judges spending at least two days out of their working week on administration. I doubt very much whether that is desirable. It would certainly be undesirable if ability in administration, as opposed to legal skills, ever came to be a significant factor in judicial appointments.

Putting extra administrative burdens on judges might, I fear, divert them from their key function of judging - which is, I suspect, what members of the public think they are paid to do. Even today, one of the complaints which the Review mentions is delay in producing judgments. This is not a new phenomenon and I am certainly not here to criticise any of the judges, since there can be all kinds of reasons why delays occur, e.g. the judge may be caught up in a long criminal trial or have a particularly heavy load of civil cases. Nevertheless, any review of our system must aim to tackle the factors which do in fact cause these delays - and this may well, of course, lead quite far afield into the area of criminal procedure. After all, it makes no sense to have, say, a tight timetable for Chapter 43 actions or judicial reviews or commercial actions, if, at the end, there is going to be a substantial delay before a judgment is issued. The same applies at all levels of the system.

In theory, at present, parties can complain to the court about delays in issuing judgments. But, as Lord President, I found that I was much more likely to hear such complaints in the informal setting of a social occasion, than in a letter from one of the firms involved. Obviously, the lawyers were reluctant to complain formally in case the judge took umbrage and found against their client. For that reason, I think that there would be much to be said for a system under which cases were automatically put out for a hearing, after a set period - say, two months - if the judgment had not appeared in the meantime. The judge or judges would then have to explain the reasons for the delay. The same would apply again after a specific further period. A system under which the judges simply wrote a letter to the parties would be possible, but almost certainly less effective. I believe that a system of hearings would introduce a certain discipline which, along with any other measures with regard to scheduling judges' work etc, would help to reduce delays. I would have the same system for the Inner House and would indeed see nothing against having such a system for the House of Lords or Supreme Court. It would not, in itself, be an answer to the problem of delays in producing judgments, but it could be part of the solution, by discouraging unnecessary delays.

Efficiency in appeals

The consultation paper raises the possibility of introducing a system of leave to appeal to the Inner House. A system under which the appeal court grants leave exists for appeals to the Court of Appeal in England. I think that a similar system for appeals to the Inner House might well help. By eliminating appeals with no real prospect of success, it might well reduce the number of last-minute cancellations which waste the time of Inner House judges. It would also contribute to dealing with the problem of party litigants - a very real and intractable problem which has to be tackled if the waiting time for Inner House hearings is to be reduced.

I am also in favour of proposals for improved timetabling in the Inner House in both civil and criminal appeals. It is noticeable that the time estimates put forward by counsel in the House of Lords in Scottish appeals far exceed the estimates in equivalent English appeals. Moreover, the Scottish estimates have been found to be, not infrequently, unduly generous. They have accordingly been cut by the House of Lords when fixing the calendar of hearings. This suggests to me that, in practice, there may, equally, be scope for reducing the time allotted to cases in the Inner House.

By itself, cutting the estimates would, of course, do no good. What is needed is to make sure both that the time allotted is no more than is reasonably necessary and that the case finishes within the time allowed. This eliminates the enormous problem of having to find additional days at a later date when all the same members of the court, not to mention counsel and solicitors, can be reassembled.

Part of the key lies in having clear and concise written cases set out in an easily readable format. A word limit - to be exceeded only with prior permission - might be considered. I freely confess that I am a somewhat reluctant convert to the use of written cases. Although I remain very much in favour of oral hearings and oral advocacy, experience with the written cases in the House of Lords has convinced me that they can significantly reduce the time a hearing takes, e.g. because counsel can simply rely on the written case for certain parts of their argument and so concentrate on the more important, or more difficult and controversial, aspects. Of course, counsel would have to be able to charge an appropriate fee for preparing the written case and the fee would have to reflect the importance attaching to this step in the procedure. If the system works in the House of Lords, I can see no reason why it should not work in the Court of Session, even if it involved a certain evolution in the way that cases are handled.

In their response to the consultation paper, the Faculty of Advocates suggest that, if a system of written cases were introduced, the judges would need to be given additional time to read them. I see absolutely no reason why. The House of Lords judges sit four days a week, like the Court of Session judges, and they are expected to do all their preparation and their writing on Fridays (their non-sitting day) and over the weekend, or before or after court. So people read the cases on buses, trains, planes and early in the morning or in the evening. Of course, we can all often think of things that we would rather be doing than reading the written cases the night before, or the weekend before. But it is just part of the job. Exactly the same could apply in the Court of Session. Anyway, the benefit of the written case is not so much that the judges absorb it all in detail beforehand, but that it is there as a tool both during and after the hearing, when drafting an opinion.

With written cases, it is easier for the court to lay down a strict timetable for the hearing, which has to be observed. In other words, if a case is down for two days, it gets two days and no more. So, for example, over the last five years, 44.9% of appeals in the House of Lords took two days; 29.3% took one day; 16.56% took three days; and only 9.24% took over three days. This is the result of a change of approach enforced by Lord Bingham and there is no reason why the same should not be done in the Court of Session. It demands discipline from both counsel and judges. In particular, counsel have to divide up the available time by agreement so that it is shared fairly. In practice, this causes no difficulty.

If such a system is to work, however, it is necessary that all the time allotted should actually be available for hearing the case. The main obstacle to such a system in the Inner House at present is the problem of incidental business - single bills etc, which can cause a late start. But that simply means giving further thought to how such incidental business is handled. Could some be dealt with on paper? For example, the House of Lords and Privy Council deal with all submissions on costs on paper. The Inner House could perhaps do the same. Similarly, with most applications for leave to appeal. Do all the single bills require to be heard by three judges? Or could some, at least, be heard, as I believe that Lord Penrose has suggested, by a single judge? Perhaps at, say, 9.30, with that judge having the ability to adjourn the hearing of a motion to three judges, if necessary? The three-judge hearings could be scheduled - say, at 4 o'clock - so as not to interfere with the day's business.

All in all, I am pretty sure that a system in which the judges took an active and sceptical interest in determining the length of appeal hearings and did not permit any overruns would simplify the administration of Inner House business and would reduce delays. Admittedly, it can mean that the judges have to do more work on the papers after the hearing, since they may not have got to grips fully with all the issues during the hearing. That is a disadvantage, but, in my experience, the advantages of the system - from the point of view of disposing of business speedily - far outweigh the disadvantages.

Room for improvement

Finally, it occurs to me when I read Court of Session judgments that many judges spend an enormous amount of time simply recounting the submissions of the parties. In a recent English appeal in the House of Lords, when we were referred to an opinion of the Inner House from 2007, I noticed that the court devoted 59 paragraphs to recounting the submissions of counsel and only 18 paragraphs to the actual decision. Of course, it is a matter for each judge to decide how he or she should frame their opinion, but I cannot help feeling that writing an opinion in that way - and the recent example is by no means unusual - puts an enormous and unnecessary burden on the judge. The practice of setting out the submissions in great detail seems to be a recent development: the reports do not show Outer or Inner House judges doing this in the past. The practice seems more pronounced in Scottish cases than in cases from other jurisdictions which come before the House of Lords. There is no suggestion that the opinions from the other jurisdictions are, for that reason, deficient. That is unsurprising since the practice does not appear to serve any very useful purpose. What matters is not for the judge to tell the parties what counsel argued, but to tell them what the judge has decided in the light of the argument. So, in practice, everyone - including the parties and counsel in the case - passes over the paragraphs giving the argument without reading them and goes to the point where the actual decision begins. It therefore seems to me that there might well be scope for the judges to reduce the burden of work on themselves by summarising the arguments very much more shortly and concentrating on the point on which they have decided the case. That could, in turn, help the judges to produce their judgments more quickly.

No system of civil justice is perfect. The Review provides a welcome opportunity for improving ours. What I have put forward are simply a few suggestions based on my own experience. I am conscious that they have a narrow focus, while the issues for the Review are far wider. Like everyone else involved in civil litigation, I look forward to seeing the recommendations which Lord Gill and his colleagues produce for improving the Scottish civil justice system.