Court reform must enable ordinary people with claims to secure skilled representation, says James Wolffe
Robert Gale and Nathan Gale were refused access to a nightclub on the ground that it had no disabled facilities. Robert has cerebral palsy and Nathan has arthritis. In proceedings under the Disability Discrimination Act, they were represented by an advocate experienced in discrimination law, organised through the Faculty of Advocates Free Legal Services Unit (FLSU). The defender accepted that the men had been wrongly refused entry and agreed to pay compensation.
A sheriff heard evidence in Kelly Rodger’s divorce case and awarded her a capital payment of £8,177. She was dissatisfied and appealed to the sheriff principal. She was unrepresented, and five days before the hearing, the FLSU arranged for a leading QC from the family law bar to appear for her. The QC persuaded the sheriff principal that the sheriff had made a mistake and Ms Rodger was awarded £50,000.
“Access to justice” is not an abstract theory. It is, for people like Robert and Nathan Gale or Kelly Rodger, about practical outcomes – about securing that their rights are respected. As the Director of the Equality Network commented on Robert and Nathan Gale’s case: “This case shows that people can use the courts to stand up against discrimination and win.”
Access to justice will only be a reality if the system delivers just decisions according to fair procedures within a reasonable time and at a reasonable cost. But access to justice is not only about court procedures. As the two cases I have mentioned illustrate, skilled legal representation is often the key to securing justice.
The Scottish Parliament is currently considering the Courts Reform (Scotland) Bill as part of a wider programme of civil justice reform. The Justice Committee recognised the importance to many litigants of being able to instruct an advocate when it introduced into the bill a specific provision on sanction for counsel in the sheriff court. Skilled representation, as it happens, not only secures justice for the individual; it should also facilitate the efficient and effective administration of justice – and, indeed, by ensuring that the court has all the necessary factual and legal material to make a sound decision, the articulation and development of the law. As the court reform programme proceeds, we must make sure that it does so in a manner which promotes access to justice – by enabling ordinary men and women with claims which matter to them to secure representation by professional advocates when they need it.
At the moment, in the Court of Session, advocates agree to act for pursuers in many personal injury cases on a speculative basis – “no win, no fee”. This gives the pursuer expert representation effectively free of charge. It works only because, if the pursuer’s case is successful, the advocate’s fee will be met by the defender.
By contrast with the position in the Court of Session, this is not automatic in the sheriff court. We should seek to maintain the continuing viability of this funding mechanism for cases which are dealt with in the sheriff court. Otherwise, legal aid may well be sought in more cases. While we are justly proud of our legal aid system, this would hardly be a welcome development at a time when the legal aid budget is under pressure. The practical alternative would often be self-representation, which would serve neither the interests of justice nor the efficient and effective use of court time.
A common feature in the two cases which I have mentioned was the role of the FLSU. The FLSU is the vehicle through which the Faculty of Advocates, today, may facilitate pro bono (free) representation for deserving cases which are referred to it by accredited advice agencies where there is no other source of funding. By contrast with speculative work, when an advocate agrees to undertake a case pro bono, the advocate receives no fee for the work involved, win or lose. Pro bono work can, accordingly, only ever be a small part of the system, although it does provide a valuable safety net for meritorious cases which could not otherwise be pursued. It can certainly never be a substitute for properly-funded public legal aid or for other arrangements – such as the speculative funding mechanism – for securing the effective representation which is necessary if access to justice is to be maintained and the administration of justice is to be efficient and effective.
• James Wolffe QC is Dean of the Faculty of Advocates www.advocates.org.uk