Sparks start to fly over reform of litigation in Scottish courts

IT IS six months now since the Scottish Civil Courts Review, the Gill Review, was published. In tennis terms the players are still at the knock-up stage prior to the match, getting their eye in with gentle lobs over the net that the present system is slow, inefficient and expensive and needs reform. Who could disagree? Everyone is in favour of virtue.

At some point the action has to begin. Last week's "Beyond the Gill Review" organised by Holyrood Magazine, saw some preliminary serves fizzing across court as both the principle and detail of the review were challenged.

Justice secretary Kenny MacAskill outlined for the first time a timetable leading to legislation in the next Holyrood parliament. "I expect to receive a provisional costing of the principal reform programme before the summer parliamentary recess. After I have been able to consider the cost of the programme, and the cost of implementing it, I will formally respond – later in 2010 – to the recommendations of the review. Proposals for public consultation will then issue around the turn of the year, early in 2011."

MacAskill went on, some changes do not need primary legislation and are already being delivered. "The Lord President has written to the parliament with proposals to introduce new court rules for McKenzie Friends; I will soon be writing to draw his attention to the need for a similar codification of the rules on protective cost orders.

Rules for multi-party actions are also under active consideration, as is a stage two amendment to the Legal Services Bill, concerning the rights of McKenzie Friends to address the court. I have also instructed officials to explore options for a full review of the cost and funding of litigation. Some of the other proposed changes are at the disposal of the Court; others will be for the new, judicially led Courts Service (that opens for business on 1 April, 2010]; others still are for the government."

It will certainly be for a different session of the parliament to legislate on Gill. MacAskill has been careful recently not to suggest that he personally will be the pilot that sees the proposed reforms through Holyrood "whatever administration is formed after the next election". He draws on the consensus across parties for the need for radical reform. All of them accept Scotland's civil courts now operate in a rights-based, property-owning, consumer-orientated, insurance-reliant society of the sort that was unrecognisable a century ago.

However, MacAskill was very clear that welcome though debate will be, "We do not propose to start again with another consultation on fundamental issues."

That is a declaration that should be noted by the professional players. The Law Society of Scotland has given a general welcome while reserving the right to negotiate in due course on the detail. The Faculty of Advocates response stressed diplomatically that it accepts 144 of Lord Gill's 206 recommendations but wishes to depth charge many of the remaining 62 that go to the heart of the Gill vision of a rebuilt pyramid of courts.

So far the position of the judiciary has yet to be published, though Lord Reed addressed the Sheriffs Association on the subject at its gathering in Peebles last month. Formally it was described as an impromptu introduction to a discussion. Others in the audience described it as a detailed 45-minute power point chapter by chapter dissection.

The audience of the Holyrood conference did hear two contributions in particular that asked them to consider fundamental issues raised by the Gill Review.

Patrick McGuire, Partner at Thompsons, fired a broadside at the criterion for access to the relevant court in the proposed Gill pyramid being purely financial. Gill suggests a value of 150,000 as the entry level to the Court of Session though stresses he is not wedded to that exact figure. McGuire was fiercely critical of cash as the criterion.

"What is effectively being proposed is that the right of any Scottish citizen to take his case to the Court of Session as long as it is over 5,000 in value will be taken away. The wish to make Scotland's courts attractive to big business and promote the Scottish jurisdiction as a centre of excellence for commercial litigation is at the expense of existing rights of access.

"I don't see it as an improvement that justice will be based on turnover. For example if Tesco has a row with one of its suppliers about a consignment of butter that went off it is likely always to beat the 150,000 threshold, but should our top judges be spending their time on a matter that will be mundane in complexity and puerile in terms of legal importance."

McGuire listed three significant Court of Session cases that would undershoot the 150,000 threshold that he held out to be examples of the existing system working better than its proposed replacement. The mesothelioma case of Smith; the damages case raised by Valentine following the death of her son, Robert Tomson, in Basra; and the test case raised by Skinner, a paramedic, against Scottish Ambulance Service on the supply of retractable needles to avoid needle-stick injury.

"The value of the case to Skinner was 7,000 but it will have changed the terms of employees' rights to safe working for a generation. Looking back in 20 years time will we be proud that the legacy of the Gill review was to make our courts fit for big business at the expense of the ordinary citizen?"

The conference also heard from Professor John Peysner who analysed the effect of the Woolf reforms in England several years ago that held the same ambitions for improving speed, cost and efficiency as the Gill review.

Had they achieved their ambitions? "No. Case management by judges hadn't worked; the costs of litigation hadn't fallen; and overall cases weren't being resolved faster."

Throughout the early exchanges of the conference, Sheriff Principal Taylor, of Glasgow and Strathkelvin was scribbling amendments to his presentation in his capacity as a member of the Gill Review team. He acknowledged he was more robust than he had expected to be.

He took on Patrick McGuire's concerns about the 150,000 threshold for access to the Court of Session. "Our aim is to make it easier for judges to remit a case up or down to the most effective forum. The gateway to access a particular level of court does not mean that is where it will end up. Important and complex cases will continue in the Court of Session.

"While I understand there are long-term ambitions for making the Scottish jurisdiction a centre of excellence for certain forms of litigation that might attract cases from around the world I'm afraid that may have to wait until it becomes efficient, economical and effective enough to retain the litigation generated here. The issue is how do we stop more litigation leaving and we feel our recommendations will assist in that aim. As regards the Woolf reforms in England it is to our advantage that we did not make the mistake of dealing with reform of procedure and costs at the same time."