Civil justice in Scotland could take giant leap with Gill report
Lord Gill's report on the Scottish Civil Justice System was published on 30 September. With 206 recommendations in 15 separate chapters, the report is comprehensive and ambitious. If implemented, it will represent a massive step forward for civil justice in Scotland.
October 14, 2009 at 05:44 AM
4 minute read
Lord Gill's report on the Scottish Civil Justice System was published on 30 September. With 206 recommendations in 15 separate chapters, the report is comprehensive and ambitious. If implemented, it will represent a massive step forward for civil justice in Scotland.
The aim of the review was to suggest recommendations that will produce prompt and efficient decision-making in the courts and procedures appropriate to the nature of the dispute. Its priorities were to ensure access to justice for the individual litigant, avoiding litigation wherever possible and encouraging the settlement of litigations once started.
The core recommendations involve a major shift in workload from the supreme court in Scotland – the Court of Session – to the Sheriff Court, Scotland's equivalent of the County Court. All claims below £150,000 would have to be heard by a sheriff and new district judges would deal with low-value civil and criminal cases. The current level is £5,000. There would be specialist sheriffs, a new national personal injury Sheriff Court, judicial or case flow management of claims, a new Sheriff Appeal Court, restrictions on rights of appeal, and the introduction of modern methods of communication.
No one escapes review, not even judges. If the proposals are accepted, judges would be publicly named three months after the conclusion of the case if they have not produced judgment. The report envisages rules which will include opt-out and opt-in provisions, potentially opening the door to major class actions in Scottish courts. Funding such litigation remains an issue but if these proposals are accepted and implemented, then the Scottish courts will extend their reach beyond UK waters considerably.
Political will and leadership will be required to turn the proposals into genuine reform. Gill has recognised this and recommended that a Civil Justice Council for Scotland be set up. Its aim will be to put in place the rules to effect the monumental changes advocated by Gill and keep the new system under review. A motivated and properly formed council is a welcome development for the profession.
The lack of detailed recommendations on the funding of litigation is a disappointment. While Gill has indicated that current cost recovery levels are inadequate, the report has not gone much further, preferring that the proposed Civil Justice Council be tasked to look at the issue of costs as soon as possible. It is vital that the issue of costs is resolved if the reforms are to succeed, as it is clearly an essential part of the litigation process for both clients and their representatives.
If Gill's proposals are implemented, they will represent a major change in how civil justice in Scotland is dispensed. Litigation departments in law firms all over the country will need to reconsider their business model. Those practices and lawyers used to litigating largely from their desks, delegating the appearance and drafting work to learned counsel, will have to rethink whether their skill set is adequate for this new 21st century court process. Partners also may have a dual role of running their businesses and representing clients at civil jury trials.
Litigation departments would face two options. They could continue to run their practices in the Sheriff Courts in largely the same way they run their current Court of Session practices or they could take the brave step of up-skilling all lawyers to deal with work in-house. For those progressive firms this ought to result in greater rewards, both in terms of income and a motivated staff. Only time will tell. Before that can happen, the recommendations in this very well-crafted and thought-out review must be debated, accepted and implemented.
David Armstrong is head of litigation at Brodies.
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