ADVOCATES have unpicked a long-standing principle of how civil cases are presented in Scottish courts, which could save claimants about £300 a day.
However, the move may also lead to solicitors and advocates competing to act in cases in the sheriff court, sources say.
From next month, counsel will be able to appear without an instructing solicitor in civil cases. The change was announced by Richard Keen QC, Dean of the Faculty of Advocates (FA), and is sanctioned by Scotland’s most senior judge, Lord Gill.
It does not affect criminal cases and an instructing agent will still be able to appear alongside the advocate but, from 24 September, they will not have to.
Mr Keen said modern communication means counsel do not need solicitors in the same room to be able to take advice, and the change brings Scotland in line with England and Wales.
The civil courts in Scotland are already set to undergo the biggest shake-up in a generation.
The Scottish Government wants to make justice faster and cheaper by moving thousands of cases – about two-thirds of the total – from the Court of Session, to sheriff courts, where often solicitors act rather than advocates.
The FA has already warned people could face David and Goliath battles for compensation against big companies that can afford to instruct top counsel even in sheriff court cases.
A legal source said: “This [latest move] is probably being done to preserve the role of advocates. Richard Keen is worried business will dry up. The party line is this brings us into line with England and Wales, but I think the greater fear is they will lose out on business.”
He added: “What happens when judges ask questions counsel can’t answer without the instructing solicitor? It could lead to delays and advocates getting criticised by judges and sheriffs.”
However, others hope the change will provide good value for individuals, and for the state in legal aid cases.
Mike Dailly, of the Govan Law Centre, said: “I thought it was a very welcome announcement. Clearly, lots of cases still need a solicitor present, where the solicitor has intimate knowledge of the case and a lot of things need to be reacted to on the hoof. However, in others, what you’ve got is a lot of legal arguing and it is difficult to see why you need a solicitor there. If that means the cost to the client or the public purse goes down, that has to be a good thing.”
While fees vary, a solicitor may charge £300 a day, with an advocate’s fee about £1,000.
If advocates do intend to act in the kind of sheriff court cases they do not take part in currently, they may have to reduce their fees to be competitive.
Gavin Herd, practice manager at Compass Chambers, believes the change will have a positive impact on sheriff courts.
“These will be, predominantly, the straightforward hearings, especially in the sheriff court. In such cases, there will be cost savings to the client, and this will also permit solicitors to use their time more efficiently,” he said.