1 RESPONSE By THE FACULTY OF ADVOCATES To THE SCOTTISH CIVIL COURTS REVIEW CONSULTATION PAPER
2 RESPONSE by THE FACULTY OF ADVOCATES to THE SCOTTISH CIVIL COURTS REVIEW CONSULTATION PAPER INTRODUCTION The Faculty of Advocates welcomes the opportunity to respond to the Scottish Civil Courts Review Consultation Paper. Members of the Faculty have a wide ranging and indeed unique experience of practice before the civil and criminal courts in Scotland. The Faculty believes that the views of its members, founded upon this experience and knowledge, can assist an objective review of the administration of civil justice in Scotland. The Faculty is conscious that the Consultation Paper is specifically directed to civil justice reform. Inevitably, the broader question of resources will include considerations regarding the current system of criminal justice. The Faculty wishes to emphasise that whilst it is clear that such an aspect cannot be ignored, it has proceeded on the assumption that any wholesale alteration to the criminal justice system would require a distinct consultation process. The views which are expressed on the criminal justice system, and how it may be affected by reforms to the civil justice system, are subject to that qualification.
3 The Faculty would propose to make a number of general observations on the terms of the Consultation Paper, followed by responses to the specific questions posed in the paper. GENERAL OBSERVATIONS ON THE CONSULTATION PAPER Introduction The Faculty of Advocates is committed to objective participation in the process of evolution and improvement of the civil justice system in Scotland. The Faculty recognises that the current system is not working as efficiently as it could. There is scope for improvement in the delivery of civil justice under the present system and as the result of changes to the present system. It is also important to notice that the present system of civil justice has evolved over a lengthy period of time and is the product of a number of delicate checks and balances. That is not a basis for suggesting that there should be no change far from it. However, it is the view of the Faculty that some of the proposals suggested in the Consultation Paper could if implemented, diminish rather than improve the prospect for attainable access to civil justice in Scotland. The Court of Session The general perception of those whom members of the Faculty are instructed to represent is that the Court of Session provides an effective, reliable and impressive forum for the resolution of civil disputes. There is general confidence in the results of litigation in the Court of Session. The most persistent criticism expressed to members of Faculty concerns delay. The main focus of such criticism concerns the delivery of judgements and the delay in the hearing of Reclaiming Motions (appeals).
4 Reform of rules relating to personal injury claims (in particular the Chapter 43 Rules) and in respect of the operation of the commercial court has been taking place over the past few years with considerable success. It is the firm view of the Faculty that further improvements in the delivery of civil justice can be achieved through evolution of these current systems, as distinct from any wholesale reorganisation. It is the opinion of the Faculty of Advocates that the public is best served by the Court of Session being a forum for the resolution of disputes at first instance. It is accepted that some considerable discretion has to be exercised by those using the courts to ensure that judicial time in the Court of Session is not being consumed by relatively trivial claims, minor disputes or straightforward cases. However, in the view of the Faculty, it ought in the first instance to be for the parties to make the choice of appropriate forum. The decision may be based on a number of considerations : for example, the importance of the case to a party ; the perceived complexity of the case ; the value of the case ; the convenience of the parties ; the availability of particular legal representation from both solicitor and counsel ; the desire to have a number of similar cases in the same forum in order to achieve economies of scale so far as legal expense are concerned ; or the fact that the case may be one in which a jury trial should be sought, which is currently unavailable in the Sheriff Court. The Court of Session has the means to control the choice of forum. For example it may restrict the expenses of the litigation to the fees allowable in the Sheriff Court. That sanction has been imposed in a number of cases in the past: see e.g. Paterson v North of Scotland Milk Marketing Board 1994 SLT 781; Gillespie v Fitzpatrick 2003 S.L.T. 999.
5 The Value of Lawyers in the Legal Process: Alternative Dispute Resolution A degree of scepticism is sometimes expressed about the true value which lawyers, in general, add to the process of the resolution of civil disputes in Scotland. The Faculty does not consider that such scepticism is warranted. The Faculty of Advocates has always been committed to the pursuit of civil justice and the provision of professional services to claimants that are of value in qualitative and financial terms. Its members adhere to strict disciplinary rules. Members of Faculty recognise that as officers of the court they have a responsibility to the people of Scotland and to the system of civil justice. They are part of a long tradition which has championed much of what the civil justice review seeks to promote. In particular, they have always been committed to the principle of access to justice without regard to the means of a party seeking it. The Consultation Paper makes it clear that the focus of the proposed civil justice review is the interests of those who are involved in and in the resolution of civil disputes, rather than the interests of those who work within the civil justice system. As a body whose members work within the civil justice system, the Faculty endorses such an attitude to civil justice review. The commitment of the Faculty has always been to the service of the interests of the court and claimants without regard to the extent to which such service might impinge upon personal interests. Practising lawyers do more than run businesses. Through diligent work and participation in the justice system, they fulfil a public service. Members of Faculty, who are not bound by the commercial obligations of either employment or partnership, have a particular and strong understanding of the meaning of public service. Individually and collectively, members of Faculty take that function seriously.
6 In general terms: The idea that access to justice and considerations of cost are best served by a system which works without lawyers appears to underlie some of the commentary in the Consultation Paper. Such an approach is not consistent with the reality of the situation. Access to legal knowledge and legal expertise is a key component of any system which intends to provide access to justice. The cost of providing access to legal advice and assistance is always a material consideration. But cost can never be a justification for not providing access to justice. The Faculty of Advocates is committed to professional rules which involve considerations of economy as part of the service which it delivers. The independence of the advice given by members of Faculty is conducive to achieving justice on the basis that it enables a legal advisor to be honest about the chances of success in an action and give advice accordingly. This, in many circumstances, will serve the principle of proportionality which underpins the Review. The advice which is given is proportionate in that it recommends the course which is, objectively, the most efficient for the client. That should also be the course which is most efficient for the court which seeks (a) to provide a just system for the resolution of civil disputes but which also (b) seeks to resolve those disputes with regard to economy, both for the State and for those involved in the legal process. The promotion of the use of alternative forms of dispute resolution should be treated with a degree of caution, especially insofar as the aim of such promotion is to exclude legal advisors. This is access to something but not access to justice.
7 The Woolf Reforms in England and Wales The Consultation Paper makes repeated comparisons with the Woolf reforms in England. The experiences of other jurisdictions are of course valuable in determining the way forward. The reforms leading to the current Civil Procedure Rules ( CPR ) in England and Wales have not been without difficulty, especially in the area of costs. Litigation regarding costs, including arguments about failure to comply with provisions of the CPR or protocols, are frequent and expensive. It is also clear that, notwithstanding the intention of the CPR reforms to reduce costs, this has not happened: see Peysner and Seneviratne, DCA research paper for the DAC (2005) page The overriding objective expressly desiderated in CPR Rule 1 is of course laudable, even if the rules as a whole are far from perfect.the Faculty is of the opinion that this objective implicitly underpins the provision of access to justice in Scotland. 1
8 RESPONSE TO THE SPECIFIC QUESTIONS POSED IN THE CONSULTATION PAPER CHAPTER 1: INTRODUCTION 1. Should the civil justice system be designed to encourage early resolution of disputes, preferably without resort to the courts? If so, what would be the key features of such a system? There is no doubt that early resolution of a dispute is desirable. The broad experience of those practicing in the civil justice system is that claimants not only desire a swift resolution of disputes but that delay can lead to entrenchment of parties. In some circumstances delay in resolution may aggravate a problem. In cases of personal injury it is not uncommon for psychiatric injury to develop or be aggravated, at least in part, in consequence of delay in litigation being concluded. That having been said, a swift resolution of a dispute should not be permitted to cause injustice. If faced with the choice of a quick and unjust resolution of a dispute; or a slower but correct decision, it is clear which choice the public would prefer. It is suggested that the Courts would wish to achieve justice rather than speed. The people of Scotland are entitled to expect that their legal rights and civil liberties will not be compromised simply because the legal system is too busy or regards it as too expensive to deal with them. The Faculty recognises that the two concepts are not, of course, mutually exclusive. But it is vital that the principal desire of justice is maintained at all
9 times. As was observed by Peysner and Seneviratne, DCA research paper for the DCA (2005) 2 The problem we found was in relation to the costs of litigants. Lord Woolf's hypothesis was that by increasing the efficiency of the litigation process, by diverting disputes from litigation, and by cutting delay in the rump of cases that were issued in the courts the costs would be cut in step with the constrained procedures. Our research suggests that this has been proved wrong. This is perhaps unsurprising. In the business world there is a universal tool, often known, as the 'Quality Triangle'. This offers a virtually iron law, that of the three objectives in a business speed of delivery, cost of production and quality of production -it is possible to improve two out of three but rarely all three. For example, products or services can be delivered quickly and cheaply but not of the highest quality. We find that the case managed court based dispute resolution system is delivering quality (justice) at a much improved pace but not any more cheaply, and possibly, at higher cost. To complete the Woolf scheme it will be necessary to introduce further reforms to preserve the gains of the new system by exploring cost control measures, whilst all the time striving to ensure that quality/justice is not sacrificed. The Faculty is anxious that in striving to provide a more cost effective and speedier solution, it is ensured that the sacrifice is not quality. It is the view of the Faculty that the primary goal of a system of civil justice must be the just resolution of disputes: that is the main thrust of the overriding objective in the CPR, rule 1 and should underpin every system of justice. However, the just resolution of a dispute should be able to be achieved in an efficient and effective manner. Early disposal of disputes should be encouraged 2 Page 72,
10 where appropriate. Further, it should be borne in mind that the current system does promote early resolution of disputes. Lawyers who are instructed by the parties to give advice as to how best to deal with their disputes have a professional obligation to advise clients as to the likely expense and time which will be involved in the legal resolution of their claims. Lawyers are generally experienced in understanding the balance between the potential risks and rewards of each potential course of action. Litigants may be unaware of the precise ramifications of early disposal of disputes. An undue emphasis on the idea of the early resolution of disputes may lead to disputes being resolved in a way which is not just and does not fairly reflect the actual legal rights and obligations of the parties. Value for money and cost-effectiveness are important principles and must be considered alongside other principles, but they are not paramount. The overriding reason for having an effective and efficient civil justice system is to ensure that all have access to good quality justice within a reasonable time. The justice system serves both to ensure access to justice and to protect justice itself. The system does not create justice. Justice exists through respect for and the proper operation of the rule of law. But a system that does not work properly can certainly create injustice. Just decisions are made by judges who understand the law and how it is to be correctly applied: that is a fundamental aspect of the rule of law. An efficient system cannot by itself deliver justice. In the Court of Session there is a recognition that some cases may be fast tracked, including personal injuries actions raised under chapter 43 of the Court of Session rules. Such cases require to be dealt with in accordance with a strict timetable which means that a proof or jury trial will normally take place within a year after the case is commenced. There is, therefore, a recognition already built into the procedure in the Court of Session that disputes relating to personal injuries require
11 to be dealt with expeditiously. It is beyond doubt that an inhibiting factor in securing proof or trial within that time scale is lack of court time. Early disposal of any dispute can only be achieved in a just way with (a) a proper understanding of the factual and legal issues involved in the dispute and (b) a proper appreciation of the prospects of ultimate success. Mediation and Alternative Dispute Resolution The potential benefits of mediation and ADR are extremely case sensitive. Experience suggests that while some forms of dispute or claim are amenable to such resolution, others are not. Cases based on allegations of fraud, illegality or impropriety are not conducive to mediation because the polarised positions that characterise these disputes inhibit discussion. Moreover, they often place a mediator in an impossible ethical position. Some mediators believe that if any party to a dispute is representing himself mediation should not be undertaken. The belief is that in this situation the unrepresented party is at a disadvantage and will seek to rely on the mediator for advice and assistance, thus placing the mediator in an untenable position. Mediation is not suited to cases in which at least one party is not willing to engage in the process. On the other hand, parties who are merely indifferent to the process may well benefit from it. A case in which a party is motivated to engage in mediation for improper motives is not one appropriate for mediation. There are many examples. A party may want
12 mediation not with a view to settlement, but to carry out some illicit discovery; to test the opponent s resolve; to intimidate the opponent into abandoning a claim or making some improvident settlement; or merely to disclose publicly that mediation is going on. The problem is that often it is only after the mediation process has begun that such abuse becomes apparent. There are cases in which parties quite legitimately want a judicial determination of their rights, win or lose, not a mediated resolution. Such parties should not be pressured into a compromise they are not interested in. Mediation is not intended to subvert the conventional litigation process. Mediation is not appropriate where parties are not fully informed of the issues. This is a matter of timing as much as anything else. Responsible lawyers do not attempt to settle cases until they have considered the issues involved, assessed the strengths and weaknesses of the case and investigated the facts, including facts that may initially be within the exclusive knowledge of the opposite party. It is difficult to see how parties can engage in a fair and properly informed mediation before such steps have been taken. This is one reason why personal injury work does not easily lend itself to mediation. By the time such a claim has been properly investigated counsel operating within the Chapter 43 procedures in the Court of Session are in a position to achieve settlement without mediation. There are types of case which would potentially benefit from early mediation. The Faculty would refer to family law cases and to cases such as wrongful dismissal. In the sphere of commercial disputes and litigation it is recognised that mediation may have an important role to play. The parties may often wish to maintain a commercial or contractual relationship following resolution of a claim. Accordingly, taking a case to the court in such circumstances may be seen as a last
13 resort. This may be contrasted with the situation in cases of personal injury where parties have not chosen to be in legal relations with each other and have no incentive to preserve any kind of relationship. It is also important to bear in mind the cost and delay implications of mandating any form of ADR before resort to the court system. Every step which is added to a proceeding has a cost in terms of time and money. If an added step such as mandatory mediation is not in fact moving a case towards resolution then it is in fact acting as an impediment to justice. Such a requirement will drain away money and resources from steps which litigants could otherwise employ in the resolution of a claim. It is important to recognise that mediation and litigation have distinct and different purposes. Mediation may deliver a fair outcome, or one that is equally acceptable to two parties in dispute, but it may not result in a just outcome in the sense of the correct application of the law. It is also important not to lose sight of the principles referred to in paragraph The development of the law depends on litigation. This is true not just in common law and in delictual and contractual cases. Within public law, statutory interpretation and, perhaps especially, the development of human rights jurisprudence, depend on cases coming to court. 2. Do you agree that the principles and assumptions discussed in paragraphs 1.11 to 1.14 are a sound basis for the development of the Review s recommendations? Should they be supplemented by other factors? The Faculty is of the opinion that the single most important objective of the Review should be to provide a just means of resolving civil claims. That necessarily involves the delivery of a just result. This is underpinned by three
14 fundamental principles: access to justice; judicial economy (value for money); and proportionality. The Faculty would point out the distinction between access to justice and access to a forum in which disputes are simply dealt with in a summary fashion. It is not access to justice to allow parties to have their disputes determined in a system which champions speed and economy over all else. To say something is cheap is not the same as saying that it represents value for money. The Faculty notes and agrees with the comments made by the Civil Justice Council that public resources are well spent on the administration of personal injuries cases where there is a requirement both for clear and good judge made law (in the areas of contract and delict) and for the justice system to ensure high standards of health and safety in the workplace. The Faculty agrees with the observations in paragraph 1.13 that a number of factors may come into play in deciding how much should be expended on a case. 3. Are there any matters within the Review s remit about which you have concerns but which are not dealt with in this paper? It would appear that the remit of the Review extends to the full range of matters within the civil justice system.
15 CHAPTER 2: ACCESS TO JUSTICE 1. What contribution can public legal education make to improving access to justice? The Faculty takes the view that public information about the law and the legal system should be encouraged. It is particularly important in cases involving family law and personal injuries where claimants tend to be individuals who have little knowledge of the law and will, most likely, have had little or no recourse to the legal process in the past. Furthermore, their opponents such as insurance companies or government bodies may have vast experience and resources to deal with the case presented to them. However, we would emphasise that public legal education is only likely to be able to achieve relatively modest aims. It would be impossible, and inadvisable, for such a system to seek to educate litigants to the extent that they would be able or expected to deal with their legal disputes on their own, without recourse to specialist legal advice. Therefore, the view is taken that legal education might focus best on advising the public about (a) where they might go in the first instance for advice when they have a legal claim or dispute (b) the nature of the court system and what they might expect where they require to become involved in the court process and (c) the potential costs involved in the pursuit of a claim or dispute, including the availability of speculative fee arrangements. In advising about the cost of litigation, the public should be made aware of the availability of Legal Expenses Insurance, both before and after the event ( BTE and ATE respectively). BTE insurance is widely, and cheaply available. Often clients are unaware that they in fact have that cover through, for example, their house contents policy or as an addition to motor insurance. The cover tends to be
16 generous at a low premium. Any education of the public should be to ensure that they are aware of such a product and what it is designed for. ATE insurance is considerably more expensive, plainly as the risk has manifested itself. Nonetheless, such products are available on the market and the public should be made aware of their existence. Plainly, in the case of ATE insurance, many potential claimants will have visited a legal adviser in connection with their claim, and will be able to take advice as to such products. As far as (b) is concerned, the Faculty takes the view that public legal education should have the effect of making the court process more appealing to the public by informing them about the nature of a court action and the resources (both legal and non legal) available to them to support them through the process. Education of the public as to what can be offered to them ought to commence at School. The Faculty of Advocates has for many years been engaged in the Mini Trials project, which is designed to educate school pupils about the way the law works in Scotland. It has been a considerable success and projects such as this should be encouraged by Government. In the absence of any comprehensive system of legal aid the Faculty is of the view that the public require to be educated through advertising as to the importance of ensuring so far as they can that they have legal expenses cover in place to permit them to access the justice system if required. It is recommended that the Government should consider an appropriate campaign through advertising.
17 2. Are there any particular geographical or subject areas in which there are gaps in provision in relation to civil legal advice or representation? If so, where? The significant advantage of having an independent referral bar in Scotland is that it provides a source of civil legal advice and representation for the whole of Scotland, however remote. The Faculty would question the accuracy of the statement made at paragraph 2.7 of the paper to the effect that parties may be unable to access speculative fee arrangements. The experience of members of Faculty is that there is little difficulty, where a case has acceptable prospects, in obtaining no win no fee representation. More difficulty is presented, in certain cases, by a lack of availability to insure a litigant against unsuccessful pursuit of such a case. This is a point considered in more detail below. It should be noted that members of the Faculty of Advocates are professionally obliged to take cases in which they are instructed, if they are available and the matter is within their expertise, the rule usually being referred to as the cab rank rule. The genesis of the rule is the desire for there to be total access to the quality, independent advice which can be provided by members of Faculty. Although advocates are generally based in the central belt, they are regularly instructed by clients from all corners of Scotland. They regularly travel to give expert representation and advice to clients in places where such a service would not be available locally. On this basis, quality advice on the full range of civil law disputes is available throughout Scotland. Members of Faculty practise across the whole spectrum of the law and are able to assist, even in subject areas that are not otherwise popular.
18 3. To what extent is it (a) desirable or (b) feasible to design court procedures with a view to enabling e litigants to take part in the process without legal representation? It would generally not be desirable for litigants to take part in the legal process without legal representation. It is accepted that there may be instances where the facts are so straightforward that it would appear at first sight that the claim could be dealt with by a party on his own. It is also accepted that there are occasions when a litigant either cannot afford to be assisted by a legal adviser, has chosen not to engage such assistance due to a lack of faith in lawyers in general, or simply is unable to find a lawyer who is willing to represent him. In the last of these instances, on occasions it happens that clients receive advice that their case is hopeless and the client does not take the advice. It usually proves difficult for a client to persuade a different lawyer to act, when that advice has been given. It may be arrogant of the legal profession to presume that advice given by lawyers is correct. But often it is. The difficulty for the justice system is that a litigant who is intent on presenting a case will occasionally do so in an unfocussed way, perhaps missing a potentially good point while insisting on points of no merit.. In England and Wales (as with other jurisdictions throughout the world) the concept of a Mackenzie Friend has been developed 3. The concept permits a friend of the party to sit and assist, but not take part. It would he hoped that in Scotland any judge would by sympathetic to such a request from a party litigant to act in a similar manner. Indeed, there have been instances known to members of Faculty where such assistance has been permitted without question. 3 See Mackenzie v Mackenzie  3 WLR 472; also see the comments by Lord Justice Sachs for comments about the disadvantages suffered by party litigants.
19 The Faculty of Advocates provides assistance to the public through its Free Legal Services Unit for deserving cases. Instructions for such representation must, however, generally be through the medium of an accredited advice agency, such as the Citizens Advice Bureau. This facility means that in a situation where a party finds himself unable to find a solicitor, he may still be able to access the services of a wide range of senior and junior counsel who give of their time for no fee. The Faculty of Advocates is permitted under its current rules to allow counsel to act for some clients under its direct access rules, without the involvement of a solicitor. However, those rules do not currently permit appearances before the courts and the category of client does not include the general public, although it is in theory open to anyone to apply to the direct access committee. The Faculty may consider altering its rules to permit direct instruction of counsel by party litigants in exceptional circumstances. Any rules by the Faculty (or by the court) should recognise that the instruction of counsel in such circumstances is designed to provide a last line of representation. Thus, appeals of questionable merit might be permitted to be presented if it results in economy of judicial time. Such a system might not only allow increased access to justice, but could save considerable court time. A system designed to enable party litigants to take part routinely would almost inevitably operate more slowly. At present, allowances are made for party litigants informally. They are, generally, allowed greater flexibility and latitude. Were such measures to be built in to a revised system, the consequences would affect all court business. There is a perception that some party litigants (and they are relatively few in number) take up a disproportionate amount of judicial time, which may not overall be in the interests of justice.
20 It is important to keep in mind that a very large proportion of civil claims (virtually all in the case of personal injury) are defended by insurers, corporations or public bodies with access to significant resources, expert legal advice and sophisticated claims handling machinery. It is not realistic to suppose that defenders could be prevented from utilising the resources available to them in order to minimise their claims liability. Any pursuer would be at an immediate and material disadvantage in the absence of access to suitable legal advice and assistance. Without equality of arms there could be no real access to justice. It is therefore difficult to see how any scheme of unqualified assistance or representation could improve access to justice. Further, it would be hard to envisage how a system of lay appearance would operate and significant practical problems could arise. The principal reason for this is that such a system must, by its nature, be based on an ability to identify or classify easy cases. Firstly, it is a very difficult exercise to classify cases in this way. Personal injury claims, however small the potential value, are usually of significant importance to the injured party. A financial threshold, below which a party is expected to represent himself, would ignore the potential difficulty in the facts of the case. The alternative, of assessing the difficulty in fact, would be a complex exercise in itself. It would be impossible to know how the filtering could take place without proactive investigation. The court would then have to take on an advisory roll in many cases, by suggesting investigations that the party may wish to undertake. Even if personal injuries cases were capable of being classified with reference to their apparent value alone, in the majority of cases, one is dealing with a moveable feast. Cases evolve and become more complicated. The medical situation in the most innocuous of cases can develop beyond that which is perceptible at the outset