ASCcONoSUtLtTiATsIOhN PCAPEiR vil Courts Review AScottish CONSULTATION PAPER Civil Courts Review © Crown copyright 2007 ISBN: 978-0-9552511-1-5 Produced for the Scottish Civil Courts Review by RR Donnelley B52804 11/07 Published by the Scottish Civil Courts Review, November 2007 The text pages of this document are printed on recycled paper and are 100% recyclable CIVIL COURTS REVIEW – CONSULTATION PAPER Foreword by the Lord Justice Clerk The work of the Civil Courts Review began on 4 April 2007. Since then we have received many representations from a wide range of individuals and interest groups. We are grateful to them all for their contributions to our work. We have decided to publish this Consultation Paper at this stage in order to inform interested parties of the principal issues that have been raised with us, to report on our researches to date and to set out what appear to us to be the practicable options for reform. In Annex D we provide certain statistical data that may stimulate further discussion. This Paper does not set out a closed agenda. We will welcome suggestions as to other questions and options that we may not have considered. From the representations that we have received so far, it is apparent to us that there is a widespread desire for reform; but we have reached no conclusions on any of the questions that we have posed. I wish to make it clear at this stage that reform in the civil courts cannot be seen apart from the growth in criminal business, which is taking up an increasing amount of the judicial and administrative resources of the courts. Unless that problem is dealt with effectively, it is probable that any proposals for civil justice reform will have only the most limited practical significance. On behalf of the Board, I thank the members of our Review Team and our Policy Group for their expertise and commitment, which has enabled us to reach this stage of the Review in so short a time. We invite responses to this Consultation Paper by 31 March 2008. After that, we may conduct more specific consultations on individual topics before proceeding to our conclusions. Rt Hon Lord Gill November 2007 CONTENTS CHAPTER 1: INTRODUCTION 1 CHAPTER 2: ACCESS TO JUSTICE 9 CHAPTER 3: THE COST AND FUNDING OF LITIGATION 17 CHAPTER 4: THE STRUCTURE AND JURISDICTION OF 27 THE CIVIL COURTS CHAPTER 5: PRINCIPLES FOR REFORM TO CIVIL 45 PROCEDURE AND KEY PROCEDURAL ISSUES CHAPTER 6: WORKING METHODS OF THE CIVIL COURTS 61 Annex A: Members of Policy Group and Review Team 85 Annex B: Civil Legal Assistance and Financial Eligibility 87 Criteria Annex C: Jurisdiction and Allocation of Business between the 89 Court of Session and Sheriff Courts Annex D: Business of the Civil Courts 95 Annex E: Research relating to Party Litigants in the Inner 135 House CHAPTER 1: INTRODUCTION 1.1 This chapter explains the background to the Review and the context in which it began its work. Remit of the Review 1.2 On 12 February 2007 the then Minister for Justice, Cathy Jamieson, announced a wide ranging review of the civil courts system in Scotland with the following remit: To review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to • the cost of litigation to parties and to the public purse; • the role of mediation and other methods of dispute resolution in relation to court process; • the development of modern methods of communication and case management; and • the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts; and to report within 2 years, making recommendations for changes with a view to improving access to civil justice in Scotland, promoting early resolution of disputes, making the best use of resources, and ensuring that cases are dealt with in ways which are proportionate to the value, importance and complexity of the issues raised. Background to the Review 1.3 The Scottish Executive’s report ‘Modern Laws for a Modern Scotland’,1 published on 12 February 2007, explained the background to the decision to embark upon the review and set out the key issues which the Review was expected to address and the principles which the Executive considered should underpin its work. 1.4 The Executive had supported the Scottish Consumer Council’s initiative, funded by the Nuffield Foundation, to examine the case for and against a review of civil justice in Scotland and to make suggestions for change. The Scottish Consumer Council appointed a Civil Justice Advisory Group (CJAG) chaired by the Rt Hon Lord Coulsfield, which held a series of six seminars between September 2004 and April 2005. The CJAG published a report in November 2005,2 which called on the Executive to establish a review of several important aspects of the civil justice system in Scotland and identified key issues that such a review should address. 1 Scottish Executive (2007), Modern Laws for a Modern Scotland: A Report on Civil Justice in Scotland. 2 Scottish Consumer Council (2005), The Civil Justice System in Scotland: a case for review? The final report from the Civil Justice Advisory Group. 1 1.5 In early 2006, the Executive held a number of meetings with a broad range of stakeholder interests to discuss the conclusions of the CJAG report. A debate on civil justice reform took place in the Scottish Parliament on 20 April 2006, in which there was a clear consensus that disproportionate costs and unacceptable delays should be addressed. At that debate the Executive announced its intention to establish a judicially-led “root and branch” review of the civil courts.3 The Lord Justice Clerk, the Rt Hon Lord Gill, was invited to lead the Review, with the above remit. The Review Board, the Policy Group and the Review Team 1.6 The Review began its work in April 2007, when Lord Gill was joined by the Hon Lord McEwan, Sheriff Principal James Taylor and Sheriff Mhairi Stephen on the Project Board. The Board is assisted by a Policy Group comprising individuals with particular knowledge and expertise in various aspects of civil justice, and is provided with administrative and research support by a Review Team.4 1.7 In recognition of the importance of the Review being as well informed as possible about what and where the problems are, a general call was issued in May 2007, via a press release and on the Review’s website, http://www.scotcourts.gov.uk/civilcourtsreview/index.asp, for views about the topics covered by the remit and any other matters within its scope that people considered the Review should take into account. Views from anyone with an interest were welcomed and a number of submissions were received via the website and its associated email address, [email protected]. In addition a number of people and organisations were contacted by letter and asked about issues relating to the civil courts which are of concern to them. Around 40 submissions have been received to date, from a range of people and organisations, including judges, legal practitioners, voluntary organisations, and individual court users. Many of these contributions are extremely detailed and thoughtful and the Review is grateful for the time and effort that contributors have given. All the contributions have been useful in informing consideration of the matters which will require to be addressed. While this paper does not discuss in detail all the points that have been drawn to the Review’s attention, it reflects the main themes and topics of concern that have been raised so far. Key issues 1.8 The remit sets out the areas the Review is expected to examine and the outcomes its recommendations should be designed to achieve. The remit is related to the four key issues identified in the Scottish Executive’s report ‘Modern Laws for a Modern Scotland’ as being most urgently in need of attention. These four issues, which were highlighted by the CJAG report, are: 3 Scottish Parliament, Official Report, 20 April 2006, col 24856. http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-06/sor0420- 02.htm#Col24853. 4 Further information about the membership of the Policy Group and the Review Team is provided in Annex A. 2 (a) the disproportionate cost of litigation, particularly in relation to cases of low monetary value; (b) balancing the demands of civil and criminal business; (c) specialisation; and (d) case management. The remit also refers to the role of mediation and other forms of alternative dispute resolution and to the development of modern methods of communication. 1.9 The Review’s primary purpose is to improve access to justice for the people of Scotland. An effective and efficient civil justice system is a vital component of a civilised and prosperous society. A good civil justice system must provide citizens with high quality advice, information and assistance, at a price they can afford, to help them avoid civil legal problems arising, to provide means to help to resolve problems satisfactorily when they do arise, and to ensure that citizens’ civil rights and responsibilities are protected and enforced when necessary. The system will be failing if the civil courts are seen as remote and inaccessible, if people are inhibited from pursuing or defending valid claims because they cannot afford the assistance they need to enable them to do so, or if the procedures and language the courts use create confusion in the minds of the general public. These are all issues which the Review will address.