More work needed to make courts fit for purpose

Consumers should be at heart of legal reform, says Richard Lloyd
Consumers should be at heart of legal reform, says Richard Lloyd
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PEOPLE don’t want to go to court to resolve a dispute, and only do so as a last resort. Therefore it is vital that when they need to, anyone can access justice as inexpensively and fairly as possible.

The modernisation of the Scottish courts system through the Courts Reform Bill is long overdue. The new law will be the cornerstone of access to justice for consumers, so the government must get it 

Which? supports the plans to move business below the value of £150,000 out of the Court of Session and into sheriff courts, making litigation less expensive and lengthy for most people.

Of course there will always be cases of such complexity or public interest that they must stay in the Court of Session, but these will be the exceptions.

We also think it’s right to introduce a third tier of judiciary through the new summary sheriffs. They should have an inquisitorial role, and to that end they could come through a wider range of backgrounds, perhaps with mediation experience.

And they need to have their own career paths so that the role is not devalued and undermined.

A new, specialised personal injury court will streamline the process and aid effectiveness, again cutting costs in everyone’s interests, and helping people to avoid expensive and unnecessary claims management companies.

For consumers the main interest, of course, is in the new Simple Procedure which will replace the small claims system. This is essential to provide a low-cost way for people to seek redress for poor goods and services.

In the past we know that too many consumers haven’t been able to afford to go to court when they’ve been let down by a builder, or lost money on a poor holiday or dodgy car.

We want to see the new simple procedure live up to its name with a problem-solving attitude, without the unnecessary pomp and ceremony of a full court, and the expense and delays that often result.

The Simple Procedure should be easy for consumers to understand, so that they don’t need to engage a lawyer.

We need better information provision for the public, and better case management so that sheriffs aren’t wasting their time and experience shuffling paperwork.

But in addition to simplicity the public needs to see some fresh thinking here about how to make the courts more accessible.

In our experience as a consumer organisation, people want justice that’s delivered as cost-effectively as possible, and they don’t consider it second best just because it’s made convenient.

So why can’t civil courts sit at weekends or in evenings?

Since we are all concerned about the reduction in court buildings, let’s use the existing ones to their full capacity – another good reason why summary sheriffs should work differently to deliver justice, not least because at present, civil cases often get shoved aside for criminal cases.

And if we can’t afford so many court buildings, then we need to move into the 21st century and use information technology systems to let people give evidence, send in documents or bring a case to court, cutting down expensive and stressful delay for litigants.

With Scotland’s geography, we should also allow people to cut down on travel where we can. Summary sheriffs could also deal with more cases if they used conference calling.

The ceiling for Simple Procedure needs to be raised to £10,000 too, as the current £3,000 level is hopelessly outdated for covering all the things people buy these days, and even £5,000 is looking much too low.

Finally, most people want their problems resolved without going to court if possible, so why isn’t Alternative Dispute Resolution – schemes that enable two parties to reach agreement without the courts – being built into the system far more fully? We need a genuine whole system approach to these reforms. It’s not there yet but it really needs to be.

Getting the courts fit for purpose is crucial. Making it easier to resolve disputes faster is good for individuals and businesses. Putting consumers at the heart of the new system is the key to getting it right.

• Richard Lloyd is executive director of Which? and @richardjlloyd

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