Professional briefing - The Journal Online

The Cabinet Secretary for Justice
welcomed Lord Gill’s report in the
Scottish Parliament by describing it as
“hard hitting” and “the first system
wide review in modern times”. The
writer concurs in his appreciation of
the work carried out by the review
team; but questions whether two
major proposals would improve
access to justice.
First, that “the existing shrieval
complement would be reduced by
around half the current number of
permanent posts... there will be a
substantial reduction in the number
of Senators” (chapter 4, paras 213 and
215). Secondly, that the privative
jurisdiction of the sheriff court be
increased to £150,000.
The target of the report’s reforms is
to “make Scotland an attractive forum
for the resolution of disputes by
providing high-quality judicial
decisions at every level”
(Introduction). There was a desire
expressed that the international
reputation of Scotland’s legal system
should be retained.
The report makes it clear that its
approach is to follow that of Dame
Hazel Genn in her recent Hamlyn
Lectures, “Judging Civil Justice”. What
Dame Genn in fact stressed in
relation to English law and courts is
that “appointing judges of the highest
calibre and ensuring that candidates
of the highest calibre put themselves
forward for consideration is critical.
This is about securing the quality of
the judiciary for the future” (p 146).
The current level of judicial decision
making certainly will not withstand the
impact of a 50% reduction in the
number of sheriffs and substantial
reduction in senators. The Lord
President, in his address at the opening
of the legal year on 18 September
2009, commented: “the amount of
commercial business attracted to the
court continues to increase – surely a
sign of the quality of treatment and
disposal by the dedicated judges there”.
If Court of Session commercial work is
a success, where does this leave
personal injury work?
The report makes it clear that
“practitioners on both sides point to
economies and efficiencies of scale
that accrue through centralising all
but the lowest value personal injury
litigation in the Court of Session”
(para 4.153). In relation to civil
justice it can be seen that currently
there are successes in the Court of
Session. The report however identifies
that “one of the key areas for reform
in the civil justice system is the sheriff
court” (Introduction).
It proposes that the privative
jurisdiction of the sheriff court would
increase to £150,000. There would be
strict sanctions in expenses for noncompliance.
The result of this increase would be
twofold. First, a massive reduction in
the Court of Session workload.
Secondly there would be increased
pressure on the sheriff court dealing
with the additional personal injury
workload, civil jury trials (in
Edinburgh Sheriff Court), and
ordinary and commercial cases at a
higher level. One cannot identify how
there will be an improvement in
access to justice where the sheriff
court, already identified as a major
problem, is subject to an increased
caseload at a higher value, requiring
specialist judges and with half the
existing shrieval complement.
In relation to the Court of Session,
the writer’s figures indicate that
existing business would shrink to
around a fifth of the current volume
of cases. The report estimates a
reduction of 64% of actions
commenced in the general
department. It is hard to see how any
meaningful supreme court could
function with the modest caseload
remaining in the court.
The Chapter 43 procedure will not
Opinion
From a personal injury practitioner’s perspective there are serious questions
whether two major proposals in the Gill Review would improve access to justice
A step too far?
www.lawscotjobs.co.uk
David
Sandison
David Sandison
is Senior Partner,
Lawford Kidd
Solicitors, a personal
injury specialist and a
member of the Law
Society of Scotland’s
Civil Justice Committee
be replicated in the sheriff court. It
depends on a tripartite relationship
involving Chapter 43, the Court of
Session administration and judiciary,
and the ability to involve counsel.
The report confirms that litigation
costs in Scotland are around half
those of England. Insurers are not
suffering excessive costs in Scotland.
The current annual Court of Session
personal injury caseload is around
2,425. The bulk of these cases will be
transferred to Edinburgh Sheriff
Court, in which 232 PI actions were
raised in 2008. Clearly the court will
be unable to cope with this
additional caseload and presumably
these cases will be transferred back to
use the unoccupied “estate” in the
Court of Session (with a smaller
contribution from court dues, which
are less in the sheriff court). Whether
this would be of any administrative
cost saving benefit is doubtful, and
even more questionable is whether it
is an appropriate use of a court which
is currently subject to redevelopment
at an estimated cost of £63,000,000
(freedom of information response
from Scottish Court Service, 18
November 2009).
Are we heeding Dame Genn’s
warning “The contribution of civil
justice reviews to declining civil
justice” (p 52)?
A fuller version of this article can be found at
www.journalonline.co.uk/extras
December 09 theJournal / 9