A Diary of Injustice in Scotland

Independent Law journalists report the news for consumers, court users & Scotland’s legal community including features on law reform, access to justice, in-depth investigations, analysis & commentaries on law, justice & politics.

Wednesday, November 12, 2014

UNCIVIL LAW: Watered down Civil Court reforms translate to more judges & specialist courts to satisfy business model of ‘lawyer only’ access to Scotland’s “Victorian” Civil Justice system

New court reforms claim justice will go faster. SCOTLAND’s embattled top judge, Lord President Lord Brian Gill has welcomed the implementation of the Courts Reform (Scotland) Act 2014 – legislation aimed at reforming Scotland’s hugely expensive and out of touch civil justice system which features watered down proposals Lord Gill originally made over five years ago in 2009.
Among the proposed changes will see an increase the value limit of cases heard in the sheriff court from £5,000 to £100,000, and the swelling of Scotland’s already burgeoning judicial ranks with the introduction of summary sheriffs to deal with some types of criminal and civil cases in the sheriff courts and the establishing of a Sheriff Appeal Court and a specialist personal injury court of national jurisdiction within the sheriff court.
The legislative reforms – mostly designed to benefit the legal profession instead of fee paying clients & the wider public, come after Lord Gill and his team conducted a two year review of Scots Civil justice which began in 2007. Two years later in 2009, Gill – then Lord Justice Clerk – published his report and rounded on the stagnation of justice, branding Scotland’s courts as “Victorian” and unfit for purpose.
Gill (72) – who is fighting a bitter two year battle with the Scottish Parliament in an attempt to avoid members of the judiciary having to declare their interests such as sizeable, secret wealth, multi million pound property portfolios, links to big business, criminal records and offshore tax avoidance – issued a statement claiming the announced reforms, which only came about after an additional review of Gill’s original recommendations “will provide Scotland with a civil justice system fit for the 21st century”
Courts Reform (Scotland) Act 2014. The ‘reforms’ – which claim to speed up justice also target non lawyer and much cheaper McKenzie Friends, otherwise known as “Lay Representatives” in Scotland’s courts. The move, seen as a protectionist measure by the Scottish Government & judiciary to discourage people from using lay representatives, makes a MacKenzie Friend jointly liable with the person they are representing for all costs in a legal case if they lose.
Among other restrictions & sanctions placed on lay representatives, which do not apply to members of the legal profession, Section 98 0f the act states: Lay representation: supplementary provision (2) Provision under subsection (1) may include, in particular, provision— (g)  enabling the court, in awarding expenses against a non-natural person in any case to find a lay representative jointly and severally liable for the expenses.
The Lord President also confirmed his intention to appoint Sheriff Principal Mhairi Stephen as the President and Sheriff Principal Craig Scott as Vice President of the new Sheriff Appeal Court.
Lord Gill said: “These reforms will safeguard the integrity of Scots law by creating an efficient court structure. Every case will be heard by the appropriate court. The system will be accessible and cost effective for the litigant. My colleagues and I in the Review Team are particularly grateful to the Scottish Parliament for having passed into law almost all of our recommendations.”
Lord Gill added: “The process of implementation will now begin. I intend to appoint Sheriff Principal Stephen as the President, and Sheriff Principal Scott as Vice President, when the court comes into being.”
Justice Secretary, Kenny MacAskill who has remained a steadfast advocate of the legal profession, said: “I am delighted that this Government’s Court Reform Bill has become enshrined in law and has today received Royal Assent.Our courts have remained relatively unchanged for decades but this new legislation will bring about the most important change for Scottish courts for more than a generation. This is a hugely important step forward in making Scotland’s civil justice system more accessible, affordable and efficient for those people who need to resolve civil disputes.”
MacAskill continued: “We have listened to and accepted concerns from some stakeholders and made amendments to ensure that people get access to the most appropriate legal representation in their cases. I am confident that the reformed courts structure, including the new national specialist personal injury court, will ensure that cases can be raised and dealt with quickly and effectively and there is easier and more affordable access to justice.We look forward to working with our partners across the justice system to implement these reforms.”
However, despite claims the reforms will make justice faster, legal insiders and observers to Scotland’s courts expect little to change in what are the most adversarial, most inaccessible and most expensive courts & legal system in the entire European Union.

Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:

The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, now Lord President Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.
Gill, giving a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had 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 it is failing society.
“It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice.”
Previous articles on the Civil Courts Review and reforms of Scotland’s antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.


Anonymous said…

Any potential reform has to go through the will-it-affect-lawyers-wallets test.
If there is a fail it cannot go ahead and just as you say these changes will do sod all for civil justice or anyone other than lawyers.

Anonymous said…

Must be a slap in the pus to Lord Gill all that hard work is watered down to this!

Anonymous said…

Has anything been done to reduce the “Victorian” complexity of Court procedure which characterize the present civil justice system?…….NO

Has anything been done to reduce the exorbitant cost of pursuing a civil claim in Scotland?……NO

Has anything been done to allow Scotish subjects to pursue class actions as others in the rest of the UK are able to do?…….NO

All recommendations proposed by the Gill Report several years ago AND ALL CONVENIENTLY IGNORED BY MSPS IN HOLYROOD.

I could go on, but to even the most superficially the longstanding failings of the Scottish justice system continue to be allowed and is a system which clearly remains firmly in the control of the the discredited Law Society of Scotland……… a result of its unfaltering alliance with, and allegiance to, an insurance provider with a notorious reputation for corrupt business practices. namely, Marsh.

Nothing will change quickly while a former Scottish Secretary of State – Lord Lang of Monkton – remains Chairman of the Board of Marsh…..a sad reflection on the ‘integrity’ of MSPs, the legal profession in Scotland, the allegedly ‘regulatory’ authorities and so-called Public watchdog organizations.

Thanks God for DOI.

Anonymous said…

Am I missing something….this seems like they are reducing the number of cases that are coming before the Court of Session to fit in with their lavish champagne charlie First Class lifestyle?

There is absolutely zero improvement in the access to justice as Scottish lawyers will still continue to pilfer from the Scottish Legal Aid Fund and run up huge bills without their clients ever being the wiser?

This is a Status Quo I am alright Jack conform?

MacAskill loyal to the end?

Anonymous said…

Good thing you are around to write this stuff up in it’s true light instead of the bs versions spun out by the old judge and Macbuckfast.

Anonymous said…

Just how is the addition of several tiers of Courts going to be cost effective?

Are solicitors and advocates now going to charge less by way of fees?

I think not.

Anonymous said…

Another bunch of judges who refuse to declare.Gill may as well appoint bankers to the jobs because that is exactly what judges are – bankers in disguise.

Anonymous said…

All that waffle from Gill about victorian justice and trying to get the system fit for purpose and now we get a few judges a limit of £100K in the sheriff courts (he originally proposed £150K didn’t he?) and a few tinkering around the edges will not deliver justice for anyone rather it will deliver more fees for lawyers and more delays only benefiting the guilty not the innocent.

Anonymous said…

Courts are run as a business model for lawyers – exactly.

Anonymous said…

No matter what rubbish Gill and the legal establishment spin out on court reforms he will always be remembered for his f*off to the Scottish Parliament when asked about transparency and your petition.Case closed!

Anonymous said…

I notice the reforms include a passage on lay representatives and how, in the event of losing a claim both they and the person they were representing will be jointly liable for the other side’s expenses.

A nice touch that, can’t see it applying to solicitors or advocates, I wonder why?

Anonymous said…

The judge clearly does not want anyone in court except his own kind.But we still have to pay for him and his legal empire.

Everything MacAskill said about it could have come out of a waste paper bin.

Anonymous said…

By pure coincidence the BBC are running what appears to be an anti-mckenzie friend article here


Is having a ‘friend’ for your day in court a good thing?
By Clive Coleman Legal correspondent, BBC News

If you were in the desperate position of needing brain surgery, would you be content for someone with no medical training, but who had seen quite a few brain operations, to carry out yours?

Maybe you’d decline the help of the talented amateur.

Let’s face it, there isn’t much of a history of successful brain surgery by non-medics.

But what if you were in the different but also desperate situation of trying to get a judge to allow you contact with your children, or attempting to get a court to agree to them living with you, following the breakdown of a relationship?

Would you be happy to use the services of someone with no legal qualifications, no insurance and who was not part of a regulated body? Well, here the talented amateur has something of a track record.

He or she also has a title – they are your McKenzie friend.

Anonymous said…


From the comments in the Law Gazette report on MFs one can easily conclude solicitors are more worried about the competition and impact on their profits than providing justice to those who cannot afford it.

This business model description of the justice system is about right.Other than coughing up for fees the public have no place in courts – according to the legal profession.

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