Kenny MacAskill: ‘A fairer system of litigation is at the heart of reform plan’

Kenny MacAskill. Picture: Julie Bull
Kenny MacAskill. Picture: Julie Bull
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THE Scottish Government’s Cabinet Secretary for Justice responds to Richard Keen’s article on these pages last week on the government’s plans to modernise the civil justice system.

The reforms proposed last week are designed to make improvements to a civil courts system described as “slow, inefficient and expensive”.

This was the view of Lord Gill, now Lord President of the Court of Session, in the Scottish Civil Courts Review. 
It is these problems that the Courts Reform (Scotland) Bill seeks to address.

The bill sets the framework for implementing the main recommendations of the review and has largely been welcomed as an important and long-overdue reform of the civil court system.

On these pages, the Dean of the Faculty of Advocates has, however, criticised certain aspects of the review and the bill, including raising of the exclusive jurisdiction of the sheriff court to £150,000 from £5,000.

The dean’s main criticism was that the proposal to raise the financial limit to £150,000 will deny people access to counsel since there is no automatic right to counsel in the sheriff court as there is in the Court of Session.

As long ago as 2005, the Civil Justice Advisory Group identified the problem of disproportionate costs, particularly in regard to cases of relatively low financial value. Lord Gill’s review concluded that only the most complex and legally difficult cases should be heard in the Court of Session, whereas most routine litigation should be conducted in the sheriff court by sheriffs using enhanced case-management powers. At present, the amount paid to lawyers on both sides of a low-value claim in the Court of Session almost invariably exceeds the settlement figure of a claim or the amount awarded by the court.

The objective of ensuring that cases are dealt with at the appropriate level in the court hierarchy and at proportionate cost can only be achieved if there is a significant increase in the financial limit below which cases can normally only be raised in the sheriff court and not the Court of Session. This will ensure the resources of the court are used efficiently and the cost of litigation is reduced.

If there is only a modest increase in this financial limit then the status quo will remain largely unchanged. Furthermore, a monetary threshold is open to abuse if parties can, without sanction, sue for a figure above the threshold even where this bears no relationship to the true value of the claim. For this reason the proposed threshold has been set at a relatively high level.

Parties will still be able to instruct counsel for cases in the sheriff court if they wish to do so. The issue is, however, whether it is appropriate that a successful party should be able to recover the higher fees charged by counsel from the unsuccessful party in all cases.

The government believes it is right that the most complex cases which are raised in the sheriff court should benefit from the expertise of counsel, and that fees should be recoverable by a successful party in those cases.

But it cannot be right that the costs of employing counsel are recoverable in all cases, including even low-value, straightforward claims in the sheriff court. It will continue to be possible for litigants to seek sanction for employment of counsel in individual cases to allow them to recover counsel’s fees from the unsuccessful party, and it will be for the sheriff to decide whether it was appropriate for counsel to be employed in the case and, accordingly, for the fees to be recoverable.

The measures proposed in the courts reform consultation are about making the system fairer for all those litigating and propose no changes to access to counsel. The aim is that cases should be dealt with at an appropriate court level. A review of the cost and funding of litigation is currently being carried out by Sheriff Principal Taylor. This is likely to consider issues relating to fees, including those of counsel, in court proceedings.

Meanwhile, I urge everyone with an interest in the efficient and fair disposal of justice in Scotland’s civil courts to respond to the government’s consultation on the Courts Reform (Scotland) Bill by 24 May.

• The consultation can be found at: www.scotland.gov.uk/Publications/2013/02/5302