Senior judge hits out at 'Victorian' Scots courts

Published on Friday 8 May 2009 22:11

ONE of Scotland's most senior judges has launched a savage attack on the country's "Victorian" civil courts – and said reform is vital to tackle diminishing respect for Scots law.

Lord Gill, the lord justice clerk, said the system was outdated, expensive, unpredictable and inefficient – and that it was failing society and putting economic development at risk.

Without dramatic reforms, the reputation of Scots law would continue to diminish, he said – along with public confidence in the judiciary.

He told the annual conference of the Law Society of Scotland in Edinburgh: "The civil justice system in Scotland is a Victorian model that has survived by means of periodic piecemeal reforms. But in substance, its structure and procedures are those of a century and a half ago. It is failing the litigant and, therefore, failing society."

As lord justice clerk, Lord Gill is Scotland's second most senior judge after the lord president of the Court of Session. In 2007, he was asked by Scottish ministers to undertake a review of the entire civil justice system and will report at the end of June.

His speech suggests ministers will receive a withering critique of the system. He said immediate reforms were required to check the "drift" in the system and that more radical reforms would be included in his report.

Lord Gill also urged conference delegates to be "receptive to the conclusions of a lawyer-led programme for reform – if only for fear of something worse". He added:

"If you were to sit down and devise a justice system for the 21st century, it would be nothing like we have."

Lord Gill identified three areas that his report, due to be handed to ministers in June, will address: access to law, delay and inefficiency.

He said: "The judicial structure should be based on a proper hierarchy of courts and the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish justice fails on all these counts.

"Its delays are notorious. Its costs deter litigants whose claims may be well founded. Its procedures cause frustration and obstruct, rather than facilitate the achievement of justice."

One of the greatest inhibitors to access in the civil courts is not just the cost to businesses or individuals pursuing litigation, but also what they perceive to be the personal cost of undertaking an action. This is particularly an issue in areas of law such as family matters – especially those that involve children – and complex personal injury cases.

Delay in civil litigation is often caused by the volume and urgency of criminal case work that forces judges to interrupt or defer long-scheduled court days. Lord Gill reported a "surprising depth of feeling" among litigants caused by the long gap in issuing judgments once the case had concluded.

He said: "Unless there is major reform and soon, individual litigants will be prevented from securing their rights, commercial litigants will continue to look elsewhere for a forum for their claims, public confidence in the judicial system will be further eroded, Scotland's economic development will be hindered and Scots law will atrophy as an independent legal system."

Huge changes to be proposed in his review are likely to include a focus on an increased and better use of IT. He claimed that Scotland was "far behind many other jurisdictions" in this area.