Civil justice in Scotland is a mess, and has been for decades.
With restrictions on access to justice, and areas of civil law limited in reform by professional interests, the Scottish Consumer Council has again, called for improvements & reforms to be made.
The Scotsman reports :
THE civil justice system is a vital public service that underpins our daily lives. We all need proportionate ways to have our grievances and disputes settled. Consumers and citizens deserve to have effective access to justice and to be able to enforce their rights. As a consumer rights organisation, the Scottish Consumer Council (CSS) has a significant interest in civil justice and fair commercial practices.
Despite the importance of civil justice to both consumers and society as a whole, it had not had the political and policy attention it deserved. Then, in 2004, the SCC established a Civil Justice Advisory Group representing key stakeholder interests, chaired by Lord Coulsfield, to try to obtain a consensus on the need for a civil justice review. The final report, The Case for a Review of Civil Justice, was published in November 2005.
The Scottish Executive responded very positively with Modern Laws for Modern Scotland, an eloquently written manifesto for change based on the findings of the SCC Advisory Group. The then justice minister asked Lord Gill to review the court related issues identified by the group's report.
We have high hopes for the Gill review and are looking forward to the publication of a consultation paper from Lord Gill setting out his first thoughts about reform.
While the review has been established specifically to look at the civil courts, we believe it must do so within the context of the wider civil justice system. The review must be underpinned by the central principle set out in the report of the Civil Justice Advisory Group: the courts should be viewed as a last, rather than a first resort.
If people are to exercise their legal rights, they need to know what those rights are, and how the legal system works. We would like to see an integrated strategy for public legal education in Scotland, building on work done in England and Wales, Canada and elsewhere.
It is important that adequate and appropriate advice services are available to diagnose the problem, deal with it or refer it on to the most appropriate dispute resolution service.
People tend to associate the courts with criminal matters. While it is likely this is partly due to the portrayal of the courts in the media, the lack of any physical separation between the two in our courts can only serve to reinforce this. We would like to see a modern system of civil justice plan for this separation.
Court processes and procedures are complex and often very difficult for non-lawyers, even well educated and articulate individuals, to follow. At the very least, there is a need for a comprehensive overhaul of all court procedures, to make them easier to use and simpler to understand.
I am astonished at the commitment of those on the influential rules councils to draft complex procedures as well as continue their day jobs, but a modern system of civil justice can surely invest the resources to allow the drafting to be undertaken more quickly and with less onerous demands on a few committed people.
While simplified forms would greatly improve access to justice, and while we very much welcome the forthcoming increase in the jurisdiction limits, much more radical reform is required. We would like to see a new system where certain types of claim are dealt with in a separate and less formal forum, preferably out-with the courts. Some thought might also be given to modernising dress codes for lawyers and judges in civil proceedings, as this can be intimidating and is unnecessary.
I would commend the recent report from the English Civil Justice Council on paying for legal representation. It clearly sets out a wide range of options and discusses their merits. It is well worth a read for anyone who has any interest in improving access to justice.
While the debate about reform of the civil courts has focused on providing mechanisms for individual redress, we believe there should be much greater emphasis on collective forms of redress.
The legal system in Scotland, unlike that in England and Wales, the United States and other jurisdictions, does not provide for a procedure for class actions. Why not?
Finally, a key issue identified by the Civil Justice Advisory Group is that of enforcement, particularly for individual pursuers involved in cases against commercial organisations.
We think the review should look into the possibility of a role for the state in assisting such individuals to enforce their decree.
• Martyn Evans is director of the Scottish Consumer Council. He will speak at today's civil justice conference in Edinburgh.