Justice on the cheap?

It is over four years since Lord Gill's review of the Scottish civil court system was published, yet it is only now that the Courts Reform Bill is before Holyrood that the opposition has fully gathered steam.

True, questions have been raised from the outset whether the report accurately estimated how much Court of Session business would be diverted to the sheriff court by raising the privative jurisdiction to £150,000, some personal injury lawyers have argued against loss of the efficient case management operating since the Coulsfield reforms, and the Faculty of Advocates has always been unhappy at so much business being taken at one fell swoop to a place where judicial approval is required for recovery of its members' fees from the losing party. But suddenly we seem to have a level of protest resembling the corroboration storm, without all the buildup.

It is curious on the face of it that the transfer of cases to local courts is being opposed on the ground of reduced access to justice. Nevertheless the reasons given – the loss of the best judicial expertise, delays in finding suitable proof dates, and indeed the possible reduced availability of counsel, where their present practice is to act speculatively, deserve to be properly examined and answered.

As our April lead feature illustrates, there is some risk of overstating one's case: those who act for insurers strenuously deny that their pockets are always deep enough that counsel will be instructed, as some pursuer agents believe, and warnings of apocalyptic consequences are easier to dismiss as alarmist.
But there is a surprising lack of official comment and explanation on whether the rules on sanction for counsel should be clarified – could the matter be referred to the Scottish Civil Justice Council? – and, of even wider impact, why it is thought that virtually no additional funding will be needed to help the sheriff courts manage the transition.

It is not very reassuring, for example, to be told that the cases coming from the Court of Session represent only 3% of the sheriff court caseload, when these include matters that may take up many court days. The effect of one lengthy proof on a court housing just a couple of sheriffs could be very serious.

The Court of Session is to be allowed to decline a remit (difficult enough to obtain in the first place) because of pressure of business, but the same is not to work in reverse. Have the scales been loaded a bit too heavily against cases being brought there?