Sunday, December 02, 2007

Scottish Civil Courts 'unfit for purpose' as hopes for review to increase competitiveness

The Scottish Civil Courts Review announced earlier this year is long overdue as many accept .. but will it do any good, or is it just another talking shop for the legal profession ?

The Scotsman reports :

Scottish Civil Court Review must help us to compete with English services


"FITNESS for purpose" has become the buzz phrase in recnt times for testing whether our institutions are delivering the services the public expect.

"Are the Scottish civil courts fit for purpose?" is essentially the question now being posed in the consultation document published as the first stage of the Scottish Civil Court Review, announced by the then Scottish Executive earlier this year.

This review of the structure, procedure and working methods of the civil courts in Scotland is being undertaken by a project board chaired by Lord Gill, one of Scotland's most senior judges, and made up of members of the judiciary, assisted by a policy group with a more diverse membership, including solicitors, advocates, and representatives of organisations such as the Scottish Mediation Network and the Scottish Consumer Council. The project board will report with recommendations within two years.

The Executive stated its objectives in instructing the review was to ensure cases are dealt with in ways "proportionate to their monetary value and the importance and complexity of the issues raised" and offer value for money by "making sure civil justice services are efficient, meet reasonable public expectations, and promote early resolution of disputes".

Many would say this review is well overdue. The current civil court system has operated in much the same way for centuries. While recent attempts at reform have been welcomed, including the introduction of specialist commercial courts in the Court of Session and, more recently, in certain Sheriff Courts, many feel those reforms have simply tinkered at the edges.

Would-be users of these commercial courts are letting their feet do the talking. In recent years, there has been a dramatic decrease in the number of actions being raised in the Court of Session Commercial Court: 50 per cent less in 2005 than in 2004 and 50 per cent less in 2006 than in 2005. Hardly a vote of confidence in a modernised system introduced in 1994.

These statistics do not mean the disputes that the Commercial Court used to deal with are not arising. They is evidence that businesses are choosing to resolve disputes in other ways.

There is undoubtedly a growing preference on the part of many commercial organisations to litigate south of the Border whenever possible. Businesses with the choice are attracted by a more streamlined court system that offers specialist judges and a better chance of recovering the real cost of litigation if the client is successful.

The use of mediation is strongly encouraged. Parties can have awards of costs made against them if they unreasonably refuse to mediate. Rightly or wrongly, the English courts are generally perceived to be more pro-active, modern and user-friendly, and to be taking a pragmatic approach to servicing the needs of commercial users.

It is necessary to halt this trend, by learning whatever lessons can be learned from England or anywhere else and by embracing the best of the new ideas that this review will hopefully generate, and to prove to the business community that Scotland can provide a court system able to deliver efficient, effective resolution of its disputes in a reasonable time and at reasonable cost.

While any radical reform will naturally take time, let's hope that it won't be too long before businesses and their lawyers will agree that the Scottish civil courts are fit for purpose.

• Kenny Cumming is the head of litigation at Shepherd+ Wedderburn.

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