It is now over three months since Lord Gill’s ‘Report of the Scottish Civil Courts Review’ was published. Most commentators agree that the 206 recommendations represent a radical and landmark change to Scotland’s court system.
The central recommendation of increasing the privative jurisdiction of the Sheriff Court to £150,000 (it currently stands at £5,000) will clearly involve a significant increase in the number of cases heard by the Sheriff Court. It had already been accepted that the Court of Session (Scotland’s equivalent to the English High Court) was drowning through having to deal with too many standard, low-value claims. The review recognised that, for the Sheriff Court to deal with such a massive increase in cases, there would have to be radical changes to the Sheriff Court structure.
The key issues that emerged during the consultation process were:
- the frequent interruptions of civil business by criminal cases;
- lack of specialisation;
- inefficiency in dealing with even the most straightforward of cases;
- little or no use of effective case management procedures and technology;
- too much reliance on personal appearances by lawyers; and
- an inappropriate use of judicial resources.
It was accepted that the Scottish court system has been creaking at the seams for several years, and is simply not delivering the kind of service that both the public and the users of the system expect. It is therefore of little surprise that the review focused much of its energies on producing a blueprint for reform that was designed to increase efficiencies and significantly reduce the time it takes for a litigant to get a result.
It has been proposed that procedural business will now be undertaken by e-mail, telephone and video conference where possible. Case management procedures will include enhanced powers for such matters as:
- use of witness statements;
- shortened written pleadings;
- early disclosure of documents; and
- better and more effective use of expert evidence.
Further, a new category of judge (known as a district judge) will be introduced to deal with low-value court claims, easing the congestion caused by such cases having to be dealt with by a sheriff.
Of course, political will and leadership will be required to turn all the proposals into genuine reform. Will the recommendations, if implemented, work? The critics have raised issues about the cost of implementation. At this stage, there has been no detailed analysis of the likely cost and there does not appear to be any intention for one to be produced. Indeed, further representations are expected from interested parties without, it appears, a roadmap for when and how the reforms are going to be implemented. The Scottish government has already indicated that reform will not take place in this current parliament, which inevitably means that implementation is at least a further 18 months from now. That said, these reforms could have a massive impact on civil justice in Scotland. Not only could they result in a far more efficient system but also the intended increased specialisation will almost certainly lead to a greater consistency of decision and one of undoubtedly better quality.
The report contains proposals with an international flavour. It recommends a multi-party procedure that will allow multiple claims to be dealt with in a single action. The opt-in and opt-out procedure opens up the possibility of Scotland’s courts hosting major international class actions, much like the US. There is no detail on how such actions will be run or how costs will be dealt with but it does illustrate the ambitions of Lord Gill in promoting the Scottish civil justice system on the world stage.
It is likely that these reforms will have a profound effect, not only on how civil justice in Scotland will be dispensed, but also on the lawyers and law firms using the system. Litigation departments will need to reassess their business model. Solicitors have generally run their own cases in the Sheriff Court without assistance from specialist advocates. This will, no doubt, continue. It will be interesting to see, however, if more complex and high-value cases will continue to be dealt with in the Sheriff Court by solicitors. Advocates who, up until now, have earned their living on relatively modest-value cases in the Court of Sessions will have to consider alternative work. The reforms may bring the solicitor profession and the Bar closer together. Those who deal directly with the client will ultimately be the ones who influence how and by whom the litigation is handled.
The implementation of Lord Gill’s proposals, particularly following a major recession, represents a real opportunity for law firms to distinguish their brand from others and develop their client service in line with the changes. Forward-thinking firms with strong litigation capabilities will now be looking to accelerate their strategic changes and investment. Only time will tell the true impact of the reforms on the legal profession. Before anything can happen, the recommendations must make it onto the statute books. The profession is hoping that this does indeed happen and that it happens sooner rather than later.