Court procedures in a post reform world. Presented by Graham Reid 13 February 2014

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1 Court procedures in a post reform world Presented by Graham Reid 13 February

2 Background 2007 Civil Justice Advisory Group chaired by Lord Coulsfield Report Civil Justice: A Case for Reform Lord Justice Clerk Lord Gill appointed to conduct a review of the Scottish Civil Courts October 2009 Lord Gill issued the Scottish Civil Courts Review.still based on a largely unreformed Victorian model now sometimes characterised by unacceptable delays. 2

3 The Scottish Civil Courts Review ( the SCCR ). 6 principles: - It should be fair in its procedures and working practices; It should be apt to secure justice in the outcome of disputes; It should be accessible to all and sensitive to the needs of those who use it; It should encourage early resolution of disputes and deal with cases as quickly and with as much economy as is consistent with Justice; It should make effective and efficient use of its resources, allocating them to cases proportionately to the importance and value of the issues at stake; It should have regard to the effective and efficient application of the resources of others. 3

4 SCCR Key Recommendations a) The allocation of Civil Court business to appropriate judicial levels; b) Proposed limit of 150,000 privative jurisdiction of the Sheriff Court; c) Specialised Personal Injury Court in Edinburgh; d) Revised Civil Appellate Structure including early sifts based on permission of the lower court and tests of legal merit; e) A new level of shrieval tier - District Judge ; f) Revised and clearer Court rules providing consistency of practice across the Court of Session and Sheriff Courts; g) More judicial specialisation; h) Enhanced use of information technology; i) Increased case management; j) Promotion of alternative dispute resolution ( ADR ). 4

5 Scottish Civil Justice Council ( SCJC ) Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 Single rules body was a recommendation of the SCCR Chaired by the Lord President; Replaces the Court of Session Rules Council and the Sheriff Court Rules Council; Assumes the roll of drafting Court rules; A new wider roll to advise the Lord President on the Civil Justice System in Scotland and make recommendations for reform; The SCJC has oversight for the entire Civil Justice System. 5

6 SCJC Committees Family law Committee Costs and funding committee; Rules re-write working group; ICT Committee to consider ICT requirements and solutions for implementation of proposed Rules of Court and Civil Court reforms. 6

7 The Courts Reform (Scotland) Bill Contained within the consultation paper Making Justice Work Large sections of the Sheriff Courts (Scotland) Act 1907 being repealed Sets out the structure of Sheriffdoms and Sheriff Court districts; The introduction of a new judicial office of summary Sheriff who will be empowered to deal with a wide range of matters including divorce/family issues, domestic abuse/harassment/interdict proceedings, children s hearings, interdicts, diligence and cases under the new simple procedure; The establishment of the Sheriff Appeal Court who will be the universal appellate Court of first instance. An Appeal on to the Inner House will require leave. 7

8 Appeal Sheriffs will be (a) all Sheriffs Principal and (b) Sheriffs who have been on the bench for at least five years and who are thereafter appointed as Appeal Sheriffs (while continuing in their roll as ordinary Sheriffs); There are provisions to allow the Appeal Sheriffs to remit a case to a fuller bench where there is divided opinion or where they consider that the matter is of such merit as to require further consideration The introduction of civil Jury Trials in the Sheriff Court. These are likely to be primarily in the specialist Personal Injury Court in Edinburgh but it is proposed that Scottish Ministers will have power to extend the categories of case and the Courts in which Juries are competent 8

9 Introduction of cases to proceed by way of simple procedure. This will replace current small and summary cause claims. It is currently proposed to apply to cases with a value of 5,000 or less. The proposed rules, which are still to be finalised, are anticipated to enable the Court to take an interventionist and problem solving approach ; It is likely that there will be restricted expenses in simple procedure cases, possibly similar to current small claim and summary cause tables; It will be possible to apply to remit a case to the Court of Session if it is of appropriate importance or difficulty; 9

10 The Court of Session would be obliged to remit proceedings to the Sheriff Court if, at any stage, it considers that the value is likely to be less than 150,000; Appeals to the Sheriff Principal will be abolished with all Sheriff Court Appeals being dealt with by the Sheriff Appeal Court and thereafter, with leave, to the Inner House; The Court of Session to have clear power to consider and make rules encouraging use of ADR The introduction of a three month period for making an application for judicial review to the Court of Session; Leave from the Court of Session will be required for the application to proceed and this will only be granted if the applicant can demonstrate a sufficient interest in the subject matter of the application and the application has a real prospect of success. Refusal may be appealed by way of a request for an oral hearing; 10

11 Lord Woolf Access to Justice Report 1996 ( the Woolf Report ) Identified principals which the Civil Justice System should meet: - a) Be just in the results it delivers; b) Be fair in the way it treats litigants; c) Offer appropriate procedures at a reasonable cost; d) Deal with cases with reasonable speed; e) Be understandable to those who use it; f) Be responsive to the needs of those who use it; g) provide as much certainty as the nature of particular cases allows; and h) Be effective: adequately resourced and organised. 11

12 There were therefore considerable parallels to the principals set out in the SCCR. The Woolf report resulted in the creation of the English Civil Procedure Rules 1998 ( CPR ) which came into force on 26 April 1999 and led to substantial changes in the English Courts including: - - Extension of Small Claims actions (currently 10,000); - Fast Track actions (currently 25,000); - Multi Track (over 25,000); - Pre-action protocols; - Extended judicial control - Ability to impose sanctions - Clearer and more consistent rules across the courts. 12

13 English Civil Procedure Rules 1998 Express overriding objective of enabling the court to deal with cases justly [and at proportionate cost] which includes :.. (b) Saving expense (c) Dealing with the case in ways which are proportionate i. To the amount of money involved; ii. To the importance of the case; iii. To the complexity of the issues; iv. To the financial position of each party; 13

14 d) Ensuring that it is dealt with expeditiously and fairly; e) Allotting to it an appropriate share of the Court s resources while taking into account the need to allot resources to other cases; f) [Enforcing compliance with rules, practice directions and orders.] ([ ] inserted by Civil Procedure (Amendment) Rules (1 April 2013) following the Jackson Report.) 14

15 The Review of Civil Litigation Costs ( the Jackson Report ) 2009 a more robust approach to case management, to ensure that (realistic) timetables are observed and that costs are kept proportionate. Case management can and should be an effective tool for costs control. Measures included: - Where practicable, allocating cases to Judges who have relevant expertise; Ensuring that, so far as possible, a case remains with the same Judge; Standardising case management directions; Ensuring that case management conferences and other interim hearings are used as effective occasions for case management and do not become formulate hearings that generate unnecessary costs (e.g. where directions could easily have been given without a hearing). 15

16 Report on the Review of Expenses and Funding of Civil Litigation in Scotland ( The Taylor Report ). Litigation expenses intentionally not addressed by the SCCR pending the Jackson Report in England. Review began May 2011 and report published September 2013 The Taylor report drew on many of the deliberations contained in the Jackson report; But where appropriate has made recommendations reflecting the distinctive circumstances of the Scottish legal market. 16

17 Taylor Report Recommendations a) Cost of litigation judicial expenses - Increase in rates and retention of an additional fee for commercial actions; - In other litigations, subject to active judicial management, retention of an additional fee being determined at the outset of the proceedings; - Power to award interest on judicial expenses from 28 days after an account of expenses has been lodged. 17

18 b) Cost of litigation outlays Certification of Counsel being retained; For cases under active judicial case management, sanction for Counsel made at the commencement of proceedings; For cases under active judicial case management, the amount of recoverable fees for Counsel to be stipulated by the Sheriff at the hearing to sanction the employment of Counsel; The assessment of expert witness fees should be proportionate to the value of the case; Certification of an expert witness should be obtained prior to instruction; 18

19 Restriction of recoverable expenses in small claim, even where a defence is not proceeded with [reflecting the anticipated new simplified procedure]; With the exception of personal injury actions, recoverable expenses in actions under the simple procedure should be fixed; If remitted from the simple procedure to ordinary cause roll, the scale upon which expenses should be assessed should be determined at the time of the remit; Summary assessment of expenses for commercial actions; Expenses management in commercial actions in the Court of Session and Sheriff Court; 19

20 c) Protective Expenses Orders - Should be generally available in all public interest cases; - A matter for judicial discretion unless otherwise prescribed in the Rules of Court; - Potentially available in multi party actions where a public interest can be demonstrated; d) Before the Event Insurance - Insured should be entitled to the right to instruct a solicitor of own choice; - But insured liable for any shortfall in costs. 20

21 e) Speculative Fee Agreements Should be permitted in principle; But subject to a cap reducing from 20% (inclusive of VAT) on the initial 100,000 of damages; Permissible to retain judicial expenses recovered in addition; For non personal injury civil actions, maximum success fee capped at 50% of the monetary award recovered; 21

22 f) Qualified One Way Costs Shifting ( QOCS ) Recommended for personal injury litigation; Not recommended for commercial litigation; Recommendation for the Court to retain discretion in the event of a Pursuer failing to beat a tender; Loss of QOCS in the event of fraud, abuse of process or unreasonable conduct. 22

23 g) Damages Based Agreements To be permitted for personal injury litigation; Capped at a maximum of 20% (inclusive of VAT) on the first 100,000 reducing to 2.5% over 500,000; Maximum cap of 35% (inclusive of VAT) in employment tribunal cases; Maximum cap of 50% in commercial actions; Commercial actions permitted to be a no win lower fee basis; Personal injury actions no win no fee only; Regulation of permitted providers including 14 day cooling off period. 23

24 h) Multi Party Actions New multi party procedure; Expenses management to be compulsory; Damages based agreements to be available; i) Regulation of Claims Management Companies Regulator to be created. 24

25 English Case Law a) Mitchell v. News Group Newspapers Limited [2013] EWCA Civ 1537 b) SCDG Ptrol Srl v. Vitol Broking Limited [2013] EWHC 3920 (Comm) c) Karbhari v. Ahmed [2013] EWHC 4042 (QB) d) Harrison v. Black Horse Limited [2013] EWHC B28 e) Bijlaniv Unum Limited [2014] EWHC 27 (QB) f) Thevarajah v. Riordan [2014] EWCA Civ 15 g) M A Lloyd & Sons Limited v. PPC International Limited [2014] EWHC 41 (QB) h) Webb Resolutions Limited v. E-surv Limited [2014] EWHC 49 (QB) 25

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