Gill and the consumer

Readers of the Journal will be well aware that the report of the civil courts review headed by Lord Gill, published last year, is a major and comprehensive piece of work, and is not likely to be repeated. It is, if acted on, likely to determine the shape of civil justice in Scotland for a long time.

It has been widely welcomed, but its proposals are radical and in some aspects call for a critical assessment. It is therefore essential that every aspect should be debated and tested.

In 2004, I was asked to chair the Civil Justice Advisory Group, established by the then Scottish Consumer Council, to look at the question whether there was a need for a review of the civil justice system in Scotland. The Group included representatives from the judiciary, the profession (both solicitors and advocates), the Scottish Executive, business and consumer interests, and trade unions.

The Group held six seminars, the purpose of which was to carry out a critical examination of the system, and to encourage proposals for change and development. Its final report concluded there was a need for review of a number of important aspects of the civil justice system.

We were therefore very pleased when in February 2007, the Minister for Justice announced that Lord Gill would lead a review of the civil courts in Scotland, to focus on four of the six areas identified within the report.

The administrative justice system, a vital part of the wider civil justice system, has also recently been under review. The Administrative Justice Steering Group (AJSG), chaired by Lord Philip, was established to commission research and act in an advisory capacity in the preparation of a final report to the Scottish Government on the administrative justice framework in Scotland. The AJSG published two reports in 2008 and 2009. Its overall opinion was that the current system does not meet the needs of users.

These three reports have recognised that neither the civil courts nor the administrative justice system are working to the benefit of their users. There is therefore a unique opportunity to consider these aspects of the civil justice system in tandem as changes are made and reforms undertaken, to ensure that such reforms create as good a system as possible for the resolution of disputes.

Advisory Group’s new remit

In January 2010, Consumer Focus Scotland reconvened the Civil Justice Advisory Group to consider the civil courts review’s recommendations. Given its instrumental role ahead of the review, the Group felt it was very well placed to react to the proposals, and to make its own recommendations.

The Scottish Government, and other interested parties, are considering a number of aspects of the report, and it has been decided that the Group’s attentions would best be focused on those proposals that impact most directly on individual users of the courts, namely family actions, claims of lower financial value, and recommendations designed to improve access to justice.

The Group aims to produce practical solutions to ensure that individual users have real and effective access to appropriate, affordable and fair dispute resolution processes.

It will specifically examine four questions:

• What an appropriate, affordable and fair dispute resolution process or processes should look like, particularly for claims of low financial value, housing cases, family cases and children’s hearing referrals.
• What structures would best support such a process or processes, including what links might be made with the administrative justice system.
• How it can be ensured that those with civil disputes have appropriate and effective routes to justice at the appropriate time, including access to methods of dispute resolution outwith the courts, such as alternative dispute resolution.
• What range of assistance (excluding advice and funding) is required to ensure appropriate and effective access to justice, including public legal education, McKenzie friends, lay representation and use of IT.

The “third tier”: a crucial role

It would not, however, be satisfactory to look at these questions outwith the context of the changes proposed for the structure of the civil courts, and the working of the proposed structure.

Lord Gill’s recommendations are founded on the proposition that business should be dealt with at the appropriate level of court hierarchy. The report therefore proposes substantial changes to the structure of the courts, including the creation of a new “third tier” civil jurisdiction.

These proposals are likely to displace a substantial amount of work from the Court of Session to the sheriff court and, within the sheriff court, to the new third tier.

It is proposed that the third tier hear all summary criminal business and all civil claims under £5,000, as well as being responsible for housing actions, and appeals and referrals from the children’s hearing system, and having concurrent jurisdiction with the sheriff court in family actions. In order to administer its business, it is recommended that the new office of district judge should be created. It is currently anticipated that 70-80% of cases heard by the district judge will be summary criminal cases.

If the proposals for the third tier are to be of any benefit, it is essential that it should work, and work properly. While there appears to be general support for moving certain business out of the ordinary sheriff court, it is questionable whether the current proposals sufficiently address some of the difficulties identified in the operation of the current system.

One of the key findings of the Advisory Group’s original report was that there was a need to examine the relationship between civil and criminal business and its impact on the organisation and administration of the courts.

While the reorganisation of business recommended by the review may alleviate this problem in the sheriff court and Court of Session, the proposal that the jurisdiction of the third tier combine all summary criminal work with all new small claims presents a severe risk that crime will continue to crowd out civil work, replicating some of the problems with the existing system. In addition, the review suggests that district judges be used to “square the circle” in ensuring adequate resources for family business. Such use in addition to criminal work is bound to reflect on these judges’ availability for small claims work.

Impact on the individual

The Advisory Group is anxious to approach the issues from the viewpoint of individual users of the civil justice system. This requires consideration of what structures and processes are desirable to resolve the types of cases that it is proposed the third tier should deal with, rather than simply reflection on the civil courts review’s recommendations. That involves asking such questions as: whether the types of actions proposed should be resolved in a forum designed to encourage or facilitate recourse by parties without significant professional assistance; whether facilities such as online access should be routinely available, or even the norm; whether non-professional assistance to litigants should be allowed or encouraged; whether the forum should be more inquisitorial in character.

As part of these considerations, it is important to revisit whether the courts are necessarily the best place to resolve some of these issues, or whether another type of forum is more appropriate. To this end, we are keen to explore potential links with the administrative justice system, as well as other methods of alternative dispute resolution.

It would not be appropriate at this stage to try to formulate detailed rules of procedure, but it is important to try to make sure that any new structures or processes are set up in a way which will enable them to meet their objectives.

It is also important for the Group to consider the range of support services required to ensure a properly functioning justice system in modern conditions, particular regard being paid to recommendations in relation to the third tier.

The civil courts review made a number of recommendations designed to support litigants and facilitate access to justice. These include that a range of regularly reviewed and updated sources of information, advice and help to deal with legal disputes be available online, that in-court advice services be made more widely available, that court-based mediation schemes be available for claims of under £5,000, and that “McKenzie friends”, who in the traditional sense offer unrepresented litigants moral support and other assistance such as taking notes and quietly giving advice, should be entitled in addition to address the court where the court considers this to be of assistance.

The review also concluded that the promotion of public legal education was an important element of any strategy to improve access to justice. There will, of course, be a need to ensure that any procedures and services are set up in a way that is article 6 compliant, that the services are available wherever they are needed, and that there are organisations to provide them. The Group will therefore consider what package of measures/ assistance is required to support citizens to have appropriate access to justice, whether via the courts or other routes.

The Civil Justice Advisory Group intends to publish a final report towards the end of this year, which we hope will provide practical solutions for ensuring that individual users of the civil justice system have real and effective access to appropriate and affordable dispute resolution processes.

We invite all interested parties to contribute to this project, by the means described in the panel, to ensure that future reforms result in a civil justice system which meets the needs of its users.

• The Right Honourable Lord Coulsfield

Informing the Group’s work

In order to inform its work, the Group is keen to engage with as wide a range of interested parties as possible.

We have recently issued a public consultation document, “Ensuring Effective Access to Appropriate and Affordable Dispute Resolution Processes”, the responses to which should be submitted by Friday 24 September. We will also be holding a consultation seminar in Edinburgh on Monday 13 September 2010.

Professor Dame Hazel Genn, Dean of Laws, Professor of Socio-Legal Studies and co-director of the Centre for Empirical Legal Studies in the Faculty of Laws at University College London, will be the keynote speaker.

Dame Hazel is a well-known authority on civil justice, having written widely on the subject, including co-authoring “Paths to Justice Scotland: what people in Scotland do and think about going to law”, and chaired the Public Legal Education and Support Task Force. She is currently jointly leading a two-year study of tribunal decision-making, funded by the Nuffield Foundation.

The event will be interactive, with roundtable discussions and feedback sessions.

Further information about the consultation document and how to respond, and about the seminar, can be found on the Consumer Focus Scotland website at www.consumer ocus.org.uk/scotland/