Every bit helps

Lord Gill’s civil courts review recommended substantial changes to the administration of justice in civil matters in Scotland. If implemented, its recommendations will have marked effects not only on the functioning of the courts in Scotland but also on the resolution of disputes in a wider context and on the operation of the legal system generally. It is therefore important that the proposals are fully debated and understood before they are put into effect.

The Civil Justice Advisory Group, of which I acted as chairman, published its first report in November 2005 and this played an important role leading up to the civil courts review. We therefore felt we were well placed to react to the review’s proposals. During 2010, we issued a consultation paper and held a consultation seminar to discuss some of the key recommendations of the Gill review – principally those relating to pre-court measures, the proposed “third tier” of civil jurisdiction, and new simplified procedure.

While we agree with many of the civil courts review recommendations, we have expanded upon some of them. There are, however, some key areas where we disagree with the recommendations and propose alternative courses of action. We produced a detailed report, comprising 15 recommendations: the main themes of these are outlined here. 

• Future reform must go beyond the civil courts

There are many methods of resolving disputes, other than resort to the courts. There has, however, been little opportunity in the past to look at these methods as part of a system-wide approach to reforming the civil justice system in Scotland. The objective of reform should be to ensure that disputes are resolved in ways appropriate to both the circumstances of the dispute and the needs and wants of the parties involved.

Particularly in times of restricted finances, efforts must be made to ensure that the best possible use is made of all methods of preventing or resolving disputes. We therefore believe that a system-wide, user-focused approach must be taken to planning civil justice reform in Scotland, looking beyond the courts to the wider civil justice system, including the administrative justice system and the various types of alternative dispute resolution. The focus should be on creating a civil justice system designed around those who use it, addressing the various needs which people confronted by a problem or dispute have at each stage, to ensure that these are resolved in the most effective way as early as possible.

It will be necessary to provide a range of solutions which may be appropriate for individuals and their problem(s) depending on their needs, wants and particular circumstances. Resolution may be achieved through the courts, but it could also be through helping those able to take action themselves to resolve their dispute at an early stage through improved information and self-help materials, or through increasing access to other forms of dispute resolution, such as mediation or consumer arbitration.

• There should be a “triage” approach to civil problems, to help inform and guide individuals in identifying the most appropriate route for their problem and circumstances

One of our key recommendations is to build in the concept of “triage” in designing civil processes and procedures. This requires that the system should attempt to ensure that at each step of the user’s journey, there is sufficient information and support available to enable people to make informed choices about the means of resolving their dispute which may be most appropriate for their particular problem and circumstances.

One of the key means of achieving this would be the creation of a web-based system, which should:

• provide information that emphasises the rights and responsibilities of parties on a wide range of issues to enable them to make informed decisions and ideally prevent disputes arising;
• provide self-help guides to help them try to resolve their problem themselves;
• contain information about sources of advice should more help be required; and
• outline the full range of processes which might be available for the different types of dispute if an informal approach is unsuccessful.

We believe, however, there is potential for IT to be used in a far more sophisticated way than simply providing “information”, and that, through the use of algorithms, such a portal could be used to provide more sophisticated advice.

Our recommendation, therefore, goes beyond what was suggested by the civil courts review. We envisage this resource being much more than a portal for written information but rather an interactive web-based system which, through the use of information, multi-media and intelligent questions, would guide people through the dispute resolution process.

In making this recommendation, we recognise that there is already a substantial amount of information and support available online. However, we think there would be advantages in bringing this range of sources together into a single gateway containing quality-assured information and other materials, which would also include links to the websites of other relevant organisations. Because of the wide remit of the web-based system, we believe such a portal should be neutrally branded and managed.

We do, of course, recognise that a web-based system has limitations, because of issues such as the “digital divide” and literacy problems, and must be complemented by other services such as face-to-face advice, hard copy materials, and perhaps a telephone helpline.

• There should be alternative accessible means of resolving disputes other than the courts

The civil courts review accepted that mediation and other forms of alternative dispute resolution provide a valuable complement to the work of the courts, and made a number of recommendations to facilitate access to such dispute resolution. Having considered the views expressed as part of our consultation process, however, this is one key area where our recommendations take a different approach to that proposed by the review.

There was general, albeit not universal, agreement both in the consultation responses and at the seminar that mediation and other forms of alternative dispute resolution can offer substantial advantages and that steps should be taken to ensure, so far as possible, that parties to a dispute have been made aware of the possibility of alternative dispute resolution and have thought about whether or not to use it.

There was no significant support for making mediation compulsory, either generally or in particular circumstances, and in this respect we follow the Gill position of rejecting the introduction of any compulsion to mediate. However, a commonly raised theme was whether there should be some formal means of ensuring that people have considered the different options for dispute resolution before proceeding to litigation. We therefore recommend that court rules should be introduced which would encourage, but not compel, parties to seek to resolve their dispute by mediation or another form of alternative dispute resolution, prior to raising court action. This follows the approach agreed in principle by the Sheriff Court Rules Council in 2007. We also recommend that this rule should be supported by a requirement for advisers, including solicitors, to discuss the range of available dispute resolution options with their client.

It is crucial to emphasise that if the process of “triage” is to operate effectively, it is not enough to ensure that those with disputes are given information about different forms of dispute resolution: it is also essential that sufficient services should be available, should they choose to access them. While Lord Gill recommended that free court-based mediation schemes be available for claims of under £5,000, ideally cases should be directed to mediation before court action is considered, so there is a need for an affordable, easily accessible and sustainable pre-court mediation process.

We acknowledge, however, that while we would hope that people would find out about their options or seek advice at an early stage, in some cases this may not happen. While the broader context of our recommendations would likely limit the role of widespread in-court mediation services, it must therefore be possible to access mediation schemes from within the court process, either via an area-based mediation service, or by ensuring that any pre-court mediation scheme can receive referrals once a court process has started.

• The “third tier” proposals require further consideration

While we accept the review’s recommendation that there should be a third tier of civil jurisdiction, which should operate using a simplified procedure in an interventionist way, there are some key areas where we disagree with the review’s recommendations.

One of the key conclusions emerging from the consultation responses and the seminar was that there should be a separation between civil and criminal court functions within the third tier. There was a clear feeling that the third tier constituted as proposed by the review would be ineffective, replicating current problems in the sheriff court.

The civil courts review rejected such a separation on the basis that the volume of civil business at the third-tier level would be insufficient to justify this. While we acknowledge that there are some practical difficulties, we believe the separation could be achieved by developing closer links between the third tier and tribunals, where possible, including the use of shared premises and judicial personnel.

Particularly given the review’s recommendation that the new simplified procedure for cases under £5,000 should be based on a problem-solving or interventionist approach, there appear to be closer links between the ethos of the civil elements of the third tier and tribunals than there would be between a continued mixed civil and criminal jurisdiction in the third tier.

The creation of a specialist housing forum was expressly rejected by the civil courts review, mainly on the ground that the issues at stake in housing cases are of such importance that they require to be dealt with by a court. We are not convinced by that argument. Immigration tribunals, for example, make decisions that may have life-threatening consequences. In contrast, a large proportion of housing actions really concern non-payment of rent, and even where eviction is sought, are commonly resolved by agreement. Moreover, in many cases, issues concerning housing and other benefits are involved.

We think there would be value in looking again at this issue, particularly in light of our recommendation that greater links should be forged between the civil business of the third tier and tribunals. While how this might work in practice requires further consideration, we think there is merit in suggesting that all housing cases be brought together to be dealt with by a specialist housing forum. This should operate in an interventionist way to ensure that the underlying issues can be identified and resolved.

The consultation produced some opposition to the civil courts review’s proposal that the third tier should have concurrent jurisdiction with the sheriff court for family actions, and that it should deal with appeals and referrals from children’s hearings. We are of the view that there is a real need to revise family procedures generally. Repeated cases have demonstrated that family actions can get out of hand, involving many days in court, many reports and witnesses and very substantial expense. While many family cases are dealt with without undue trouble or expense, the difficulties caused by those cases where things do go wrong can be considerable. We therefore recommend that the Scottish Government should review the way in which family cases are dealt with, including the rules and procedures which should apply.

More generally, it is important to repeat that if the third tier is to operate effectively, it must have adequate resources.

• IT considerations should be built in from the start

We would like to see far greater use being made of information technology within the justice system. The development of the web-based system we recommend should consider whether it could be used as a portal for undertaking elements of dispute resolution online. In order to ensure that maximum potential is achieved from IT in the justice system, the approach should be to analyse and design procedure from the starting point that in the future, access to the courts will primarily be through electronic means. The approach should not involve writing or adapting a version of current methods and then trying to devise an internet-based means of carrying it out. Specialist technical advice should be part of the process of designing civil procedures from the start to ensure that processes are designed in such a way that they can operate electronically.

In its recent paper A Digital Ambition for Scotland, the Scottish Government outlined its desire to see more public services delivered online. However, despite both the previous Scottish Executive and the civil courts review recognising that the civil justice system provides a public service, this paper does not discuss the potential to deliver justice services online. The Scottish Government has committed to developing a digital strategy, which was expected to be published early in 2011. In order to ensure that the use of IT within the justice sector keeps pace with developments in other sectors, we believe it is essential that the digital strategy includes consideration of the use of IT in delivering justice services.