Streamlining the Inner House

The Act of Sederunt (Rules of the Court of Session Amendment No 2) (Causes in the Inner House) 2010 comes into force on 5 April 2010. It will be accompanied by a Practice Note (Practice Note No 1 of 2010).

As at the date of writing, that Practice Note has not been finalised. It, and the new rules, should be the first port of call for any practitioner with business in the Inner House on or after 5 April.

The new rules have been inspired by a report by Lord Penrose on the arrangements for the disposal of Inner House business (available on www.scotcourts.gov.uk/innerhousereform/index.asp). Lord Penrose’s review arose from a perception that the existing rules and practices failed to secure the most effective use of the resources of the court. The problems identified included the absorption of large amounts of court time by party litigants, the drift of cases due to the inaction of the parties, and the impact of criminal and procedural business on the time available for substantive hearings.

Reforms to date

Independently of the measures introduced by the Act of Sederunt, the court has already taken a number of steps within the scope of the existing rules of court. Those steps have included:

• Inner House judges have been ringfenced from first-instance crime.
• Better use has been made of early disposal procedures, with hearings set down at as little as two weeks’ notice.
• “Single bill days” have been introduced when days are otherwise free, enabling summar roll hearings to begin more promptly.
• Arrangements have been introduced to deal more efficiently with immigration cases, including the use of written submissions and time limited hearings.
• A dedicated appeals section has been created in the Offices of Court.
• Appeals which have no comprehensible basis have been dismissed at an early stage on the ground that the appellant has failed to lodge proper grounds of appeal.
• Applications for leave to appeal have been heard on the single bills, rather than such applications being routinely sent to the summar roll for a full hearing of the merits of the appeal.

Those steps alone are not however sufficient to enable the best possible use to be made of the court’s resources. Lord Penrose recommended more radical reform, requiring changes to the rules of court.

Draft rules, based on the recommendations, were issued for consultation during 2009. As part of that process, an open meeting was held, which was attended by interested parties. An implementation group, including representatives of the Law Society of Scotland, the Faculty of Advocates and the Scottish Legal Aid Board, was established to take the process forward. The Act of Sederunt in its final form reflects the discussions of the group.

Procedural judges

Central to Lord Penrose’s recommendations was the conclusion that efficiency would be improved materially if procedural business could be delegated to a single Inner House judge. The creation of a procedural mechanism to achieve that aim would free up judicial resources which could be more effectively deployed on substantive business.

The introduction of such a mechanism was made possible by an amendment to s 5 of the Court of Session Act 1988 by s 46(3) of the Judiciary and Courts (Scotland) Act 2008. This provision enables the court to make provision, by act of sederunt, as to the quorum of a Division of the Inner House considering purely procedural matters. This is reflected in the new Chapter 37A of the Court of Session Rules. In relation to such procedural business as is defined in rule 37A.1, the quorum of a Division of the Inner House is one judge.

Procedural business is defined as such business as arises under—

(a) a reclaiming motion,

(b) an application for a new trial under s 29(1) of the Court of Session Act 1988 or an application to enter a jury verdict under s 31 of the 1988 Act, or

(c) an appeal from an inferior court, in each case up to and including the point at which a procedural judge, at a procedural hearing, appoints a cause to the summar roll or to the single bills for a hearing or makes such other order as is considered appropriate to secure the expeditious disposal of the reclaiming motion, application or appeal.

Rule 37A.2 makes provision for the Lord President to nominate procedural judges. It is intended that the Lord President will nominate a number of such judges.

However, when acting in that capacity, each procedural judge will sit as a single judge.

Rule 37A.2(3) preserves the competency of a Division comprising three or more judges to dispose of procedural business instead of a single procedural judge, should such a Division consider it appropriate. Provision is also made throughout the new rules for a procedural judge to remit certain matters to a Division comprising three or more judges. Such a remit might be appropriate where procedural business raises issues of particular importance or novelty.

The new rules do not extend to statutory appeals under Chapter 41. The first stage of the procedural reforms relates to reclaiming motions, applications for a new trial and to enter jury verdicts, and appeals from lower courts only.

The second stage of the reforms, encompassing a revised version of Chapter 41, will follow at a later date. It is intended that similar procedural mechanisms will be adopted in relation to such appeals.

New Chapters 38, 39 and 40

With effect from 5 April 2010, the present Act of Sederunt provides for the substitution of existing Chapters 38 to 40 of the Rules. Each of the new chapters includes provision for the issuing of a timetable for the procedural steps up to and including a procedural hearing. Essentially, the new procedure resembles procedure in the Commercial Court. However, it also builds in one of the features of personal injury actions in the Outer House under Chapter 43 of the Rules, namely the production of a timetable, with hearings being held if there is a failure to comply with the timetable.

Urgent disposal of cases

The new rules make provision for the urgent disposal of reclaiming motions and appeals from lower courts (rules 38.11 and 40.9). Urgent disposal is broadly the equivalent of early disposal under the previous rules. The new rules do not impose any requirement for a motion to be made for urgent disposal in specified types of reclaiming motions or appeals. The inclusion of such provision is unnecessary, as procedural judges will be able to exercise case management powers in every case.

Objections to competency

Provision is made in each of the new Chapters 38, 39 and 40 for a procedure for dealing with objections to competency (rules 38.12, 39.3 and 40.10). The procedure is novel in so far as it applies to Chapter 39. In so far as it applies under Chapters 38 and 40, the new procedure differs in some respects from the previous procedure.

In each case, a form is prescribed to allow a party to specify the basis of an objection to competency. Time limits are prescribed for the lodging of notes of objection. In relation to reclaiming motions and appeals from lower courts, the Deputy Principal Clerk of Session may also refer an issue of competency for consideration by the procedural judge, giving notice of the grounds of referral.

The procedure for dealing with objections to competency does not form part of the timetable. It is intended that parties should consider competency at as early a stage as possible, so that the procedural judge can then consider any competency issues before the timetable is issued and the procedural hearing is fixed. Rather than objections to competency being dealt with on paper as under the previous rules, a hearing will take place before the procedural judge. Notes of argument will require to be lodged in relation to the competency issue.

Timetables

Lying at the heart of the reforms are the rules which provide for the issue of a timetable and the fixing of a procedural hearing (rules 38.13, 39.4 and 40.11). The periods to be followed under the timetable, so far as possible and subject to any motions for urgent disposal, will be prescribed by the Lord President. The prescribed periods will be set out in the Practice Note.

Included among the steps to be dealt with under the timetable are the lodging of notes of argument, grounds of appeal, appendices and estimates of the length of any hearing on the summar roll or in the single bills which may be necessary to dispose of the proceedings.

Provision is made for a party who is concerned that the timetable has not been complied with to enrol a motion for the cause to be put out for a hearing before a procedural judge (rules 38.15(1), 39.6(1) and 40.13(1)). The procedural judge is provided with powers to ensure effective supervision of the management of cases under the timetable, in cases of procedural default. Those powers include powers to allow or refuse the reclaiming motion, application or appeal, or to make such other order as the procedural judge sees fit to secure the expeditious disposal of the case.

Provision is made under the new rules for sist or variation of the timetable (rules 38.14, 39.5 and 40.12). Either extension or acceleration of the timetable can be sought.

Motions for sist or for variation of the timetable will only be granted on special cause shown. Parties will be encouraged to ensure that any such motions are made as soon as possible after the timetable has been issued. Special cause might include the need to obtain transcripts of evidence, or legal aid, or an opinion of the Lord Ordinary.

Procedural hearings

The procedural hearing will follow on completion of the other procedural steps mentioned in the timetable (rules 38.16, 39.7 and 40.14). Its primary purpose is to make sure that no case is sent for a hearing on its merits unless the procedural judge is satisfied that a hearing is necessary and that the parties are prepared for it.

At the procedural hearing, parties will be expected to be in a position to discuss the issues involved in the reclaiming motion and the method of disposing of them. Parties should address the procedural judge on their state of preparation, and estimate the length of any hearing on the summar roll or in the single bills which may be required to dispose of the reclaiming motion, application or appeal. The procedural judge will decide the length of any such hearing, and when it is to take place.

Parties will be expected to arrange that counsel (or other persons having rights of audience) responsible for the conduct of the case, and authorised to take any necessary decision on questions of both substance and procedure, are available and appear at any hearing in the Inner House, including a procedural hearing and any other hearings before a procedural judge. Counsel should have (or have access to) their diaries at the procedural hearing, so that the court can fix the date of any further hearing which may be required.

The court’s initial approach to the programming of procedural business under the new rules is based upon the premise that each of the two Inner House Divisions sitting during term will allocate part of most sitting days to procedural business. It is anticipated that such business will primarily be dealt with by a procedural judge between 10am and 10.30am. The following working assumptions will apply:

• procedural business will be dealt with throughout the year. Hearings will be held in a courtroom, with court dress being worn, rather than in a less formal setting;
• procedural business in the Inner House should not disrupt substantive hearings;
• the same judge should deal with procedural hearings and motions in any particular reclaiming motion, application or appeal where possible.

Continued procedural hearings should be avoided as far as possible. Where it emerges at a procedural hearing that further steps require to be taken, the parties will be provided with an interlocutor which amounts to a “to do” list, with a timetable. It should be possible, using email communication between the parties’ solicitors and the court, to ascertain whether the steps have been carried out (and if not, why not), whether further time is required (and if so, why), and whether a further hearing is genuinely required (rather than, for example, the court’s making any necessary order on the basis of an unstarred motion).

This approach, which has worked successfully in the Commercial Court, is designed to avoid the parties (and the court) incurring the expense of hearings unless they are genuinely necessary. It is hoped that effective channels of communication will quickly develop between procedural judges, Inner House clerks, agents to parties and the Scottish Legal Aid Board under the new procedures.

Notes of argument

Parties will be required to produce detailed notes of argument at an early stage in the proceedings. This is not only necessary for the purposes of the procedural judge. It will also entail that the parties’ advisers consider at an early stage the nature and strength of the arguments on which they intend to rely.

The appropriate form of a note of argument will depend on the circumstances. Consideration will be given to issuing guidance in the Practice Note.

Other measures

The Scottish Legal Aid Board has confirmed that no changes will require to be made to legal aid fees as a result of the procedural changes which will come into force on 5 April. The Lord President’s Advisory Committee on Fees has been considering the position in relation to expenses, and will be taking a decision in March, after the date when this article is written.

Stage two of the rule changes will affect appeals under statute under Chapter 41 of the Rules. Lord Penrose’s report also contains other proposals designed to improve the efficiency of Inner House business which cannot be progressed by way of court rules, without primary legislation first being enacted. For instance, the report contains a proposal that a general requirement of leave to appeal be introduced in the Inner House, to filter out unarguable appeals. That proposal was subsequently endorsed by the Report of the Civil Courts Review.

It is important in the interests of justice that we succeed in making better use of the resources of the Inner House. I hope that the profession will welcome these changes and assist the court in implementing them.

• The Rt Hon Lord Reed