Lawyers warn Scottish Government over court reform

The Court of Session, Edinburgh. Picture: Toby Williams
The Court of Session, Edinburgh. Picture: Toby Williams
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SCOTTISH Government court reform plans will deliver “unequal” justice favouring the rich and big business over ordinary people, lawyers have warned.

Both the Faculty of Advocates and the Law Society of Scotland have criticised the Courts Reform (Scotland) Bill.

The bill would see all cases where damages of less than £150,000 are at stake – of which there are thousands each year – heard by new summary sheriffs instead of the Court of Session.

The Scottish Government hopes that the process will be quicker and cheaper than at present – Audit Scotland estimates the justice system is wasting £55 million a year.

However, the Faculty of Advocates warned that the reform will create a system where those who can afford it receive the best legal representation, while those on legal aid will suffer.

People relying on legal aid would automatically be represented by an advocate in the Court of Session, but in the sheriff court that would only happen in “exceptional” cases, it claimed.

The faculty said in a statement: “The effect of these combined measures will, in the view of the faculty, fundamentally undermine both access to justice and equality of representation.

“Litigants choose to bring cases in the Court of Session notwithstanding that they could, as the law currently stands, bring them in the sheriff court. They do so because the Court of Session provides a better forum for resolution of their disputes.

“The proposal would in effect deprive individuals on low and moderate incomes and SMEs [small and medium sized businesses] with serious cases, of the right and ability to instruct an advocate.

“This aspect of the proposal would favour wealthy and corporate litigants, who can afford to instruct counsel, over ordinary people and would create inequality in the justice system.”

The Law Society of Scotland echoed concerns, previously raised, that the reforms are taking place at the same time as the Scottish Government is closing ten sheriff courts in the face of £24.6m in cuts. There are fears that those remaining will have too much work, causing backlogs in the system.

Kim Leslie, convener of the Law Society of Scotland’s civil justice committee, said: “If the proposals are implemented as currently drafted, a deluge of cases could hit Scotland’s sheriff courts.

“There is a risk that sheriff courts will be unable to cope. We expect this to be made worse by the recent Scottish Government decision to support the closure of 20 per cent of sheriff courts across Scotland.

“If sheriff courts are unable to cope with the increased workload, there could be significant delays for court users.”

There have also been concerns raised about the impact on witnesses and victims, who will have to travel further to attend cases.

However, the Scottish Government insists the closures are necessary and will not overburden the remaining courts.

A spokesman said: “The Scottish Government accepted the Scottish Court Service’s [SCS] proposals to change the structure of our courts. Their proposals are now being scrutinised by parliament.

“The fragmented, outdated court system we inherited, where many smaller courts are not fit for purpose and are underused, is no longer sustainable.”

A spokesman for the Scottish Legal Aid Board added: “While it would be necessary to get approval for the use of counsel in the sheriff court, we would grant sanction for counsel where it is appropriate.”