Legal: Justice for all undercut by key proposals

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Last Thursday, the lead Scotsman editorial was headlined “Law reforms must be to the benefit of all”. I firmly agree with that statement.

The publication of the Scottish Government’s consultation on the civil justice review provides an historic opportunity to modernise our civil justice system. Many of the proposed changes are to be welcomed.

We must, however, keep firmly in mind that the justice system is there for all the people of Scotland. Access to justice and equality of representation are two key principles by which any proposal to reform the civil justice system should be measured. I would like to highlight two aspects of the proposals which will undermine those principles.

The first is the proposal to remove from the Court of Session all cases of a value less than £150,000. Under these proposals, a claimant who has suffered an injury at work and who legitimately claims, say, £100,000, will lose the right to bring that claim in the Court of Session even though the outcome of the case one way or the other will be critical to his or her future quality of life.

A small business with a commercial dispute worth £125,000 – a sum that might affect the survival of the business – is not to have a right to bring that claim before the specialist commercial judges in the Court of Session.

The obvious point is that the sum sued for does not necessarily reflect the importance of the matter at stake for the parties involved.

The equivalent threshold in Northern Ireland is £15,000, and in England and Wales it is £50,000. The proposal represents a 3000 per cent increase on the present limit in Scotland.

The second area of concern is that people pursuing these cases will, for practical purposes, be deprived of the opportunity to instruct an advocate. It may not be widely appreciated that in a very high proportion of personal injury claims the advocate appears on behalf of the claimant on a “no win, no fee” basis.

If the case is raised in the Court of Session, the claimant is entitled to instruct an advocate, and, if successful, the defender will have to meet the cost of the advocate. As the proposals in the consultation stand, the claimant will have no right to bring his or her case in the Court of Session unless it is above the magic limit of £150,000.

Unless the sheriff court approves the use of an advocate (which, according to the consultation, is to happen only in exceptional cases), the advocate’s fee will not be recoverable from the defender even if the claimant wins.

It is precisely in such cases that the claimant should be able to instruct an advocate.

Defenders, who in such cases will normally be funded by insurance, will continue to instruct advocates. Simple fairness – equality of representation – demands that the injured individual should have an equivalent choice of who represents them. It is not clear why they should be deprived of that choice.

Neither is it obvious who would benefit from this change apart, perhaps, from insurers. At present, there is a purpose-designed personal injury procedure in the Court of Session which works well, and with the minimum of judicial involvement. It works well principally because both parties are normally represented by well-qualified advocates, and solicitors who have experience of managing such cases. Moving these cases into the sheriff court and effectively depriving the pursuer of that choice will benefit neither the administration of justice nor the ordinary people of Scotland.

The Faculty of Advocates looks forward to engaging constructively with the Scottish Government to achieve our shared goal of a system of civil justice which protects access to justice for all and supports equality of representation before the courts. We will support any measure which will benefit the people of Scotland.

We hope that many of the measures in the consultation will meet that criterion. The proposals I have highlighted will not do so.

• Richard Keen QC is Dean of the Faculty of Advocates

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