Legal barriers to fair representation

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Richard Lloyd’s critique of the forthcoming changes to the rules and procedures (the Court Reform Bill) governing access to justice in Scotland was a refreshing, bracing and very welcome defence of the interests of the laity (Law & Legal Affairs, 22 July).

Arguably, the bill is at best a superficial improvement in that it does not deal with some of the fundamental barriers to justice. Ultimately, lawyers remain free to charge huge hourly rates – thereby ensuring that access to justice is simply unavailable to most of those who need it. Restrictions on legal aid compound the financial barrier to justice.

Moving cases from the Court of Session to the Sheriff Court may marginally reduce costs, but legal fees will remain beyond the means of most people.

Self-regulation of lawyers by the Law Society and the Faculty of Advocates impinges on access to justice. Inept representation (aka professional misconduct) can taint and ultimately ruin the progress of a client’s case. The bias that inheres in self-regulation implicitly facilitates such “representation” in that the “investigation” of the consequent complaints almost invariably leads to a verdict of total exoneration.

The Faculty of Advocates, the self-perceived officer class of Scotland’s legal fraternity, reflects a significant barrier regarding affordable access to justice. It has decreed that the laity cannot access the services of an advocate directly – it can only be done by employing a solicitor as a go-between.

This exercise in haughty disdain for the interests of the laity ensures that costs are increased and access to justice is diminished. That absurdity does not prevail in England.

The Law Society and the Faculty of Advocates support the principle of immunity from law suit regarding the negligent conduct of lawyers in court. The “principle” was established by the Court of Session in 1876 and has been with us ever since.

Clients who benefit from the negligent conduct of their lawyers (by losing their cases) can forget the prospect of access to justice: whatever the degree of negligent conduct, there is no such access. Immunity, as devised by a judge and supported by the legal fraternity, is the ultimate enemy of access to justice.

That affront to justice does not prevail in England.

Welcome though it is, the Court Reform Bill will do nothing regarding the trinity of impediments affecting access to justice: self-regulation, cost and the immunity principle. Ergo, effective access to the courts remains as elusive as a lottery win and a day trip to Pluto.

Thomas Crooks

Dundas Street


Richard Lloyd’s article discusses changes to court procedures, in particular that of replacing the small claims procedure.

However, this is only part one of the daunting process that claimants have to go through as in many cases the respondent will not pay up even though the sheriff has told them they are obliged to do so.

The claimant is then faced with employing sheriff 
officers with additional cost and stress.

What is to be done to 
make this process more 


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