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					Response From Irwin Mitchell To The Scottish
Civil Courts Review Consultation Paper
Introduction
1. Irwin Mitchell (IM) is pleased to respond to the
consultation paper issued by the Scottish Civil Courts
Review. Some facts about IM are of particular relevance
to our response. These are:

• IM is one of the largest firms in the United Kingdom, with
  over 100 partners and 2,182 staff.
• IM’s Scottish office is in its own right one of the largest
  legal providers in Scotland, we believe acting in more
  Scottish legal transactions, and for more Scottish
  consumers, than any other firm.
• We are one of the largest users of the civil courts in
  Scotland, with leading positions in personal injury,
  mortgage repossession and debt recovery work. As part of
  this service provision, we raise around 6,000 Scottish civil
  actions per annum.
• IM is the only fully integrated UK law firm. Its Scottish
  partners are full partners in England & Wales and the
  reverse is true for the English partners. In contrast to all
  other cross-border firms, one integrated set of accounts
  operates across the whole UK firm. We believe that our
  experience across the courts systems of the UK and our
  recognised position as leaders in legal technology, allows
  us a unique insight into the operation of the civil courts in
  Scotland. Indeed, IM has been, in England & Wales, a
  leading contributor to reforms of civil procedure over many
  years, particularly Lord Woolf’s access to justice review,
  reports, the Civil Procedure Rules (CPR), Practice
  Directions and Protocols. Further, since the Access to
  Justice Act and the CPR, IM has contributed to improving
  and monitoring the Woolf reforms, working closely with the
  Civil Justice Council.
• IM and many of our clients view the issues under review in
  the consultation paper as an opportunity to improve the
  way that we can serve the public.

 The firm’s support for the improvement of access to justice in
England & Wales involving procedural reform and funding
issues is consistent with our general support for the Scottish
Civil Courts Review. Against this background, we now answer
the specific questions posed by the Consultation Paper.




                                                                  2
Response to Chapter 1
1. Should the civil justice system be designed to                      2. Do you agree that the principles and assumptions
encourage early resolution of disputes, preferably without             discussed in paragraphs 1.11 to 1.14 are a sound basis
resort to the courts? If so, what would be the key features            for the development of the Review’s recommendations?
of such a system?                                                      Should they be supplemented by other factors?

1.1 Yes. We believe the primary way of effectively achieving           1.2 We agree fully with the principles and assumptions set out
early resolution of disputes, without resort to the Courts,            in paragraphs 1.11 to 1.14. Indeed, our firm, led by senior
would be by extending the use of protocols designed to limit           partner Michael Napier QC, contributed very significantly to
litigation. A number of voluntary protocols already exist              the report of the Civil Justice Council on access to justice,
covering claims involving personal injury and professional             including the framing of the five overriding principles set out by
negligence. These protocols should be developed and, where             the Review at paragraph 1.12. We remain of the view that
appropriate, made mandatory. Failure to adhere to such                 these principles are a sound basis for development of the
protocols should result in the imposition of penalties on the          Review’s recommendations and are pleased to note that the
non-conforming party. We deal more fully with pre-action               Committee accepts that proportionality includes not only the
protocols in response to questions 6.1 to 6.3 below.                   issue of costs but also the speed of justice.

To further encourage early resolution of disputes, we would
invite the Review to consider the implementation of a system           3. Are there any matters within the Review’s remit about
of full costs recovery in litigation, similar to that which operates   which you have concerns but which are not dealt with in
in England and Wales.                                                  this paper?

We advocate this position in the context of achieving social           1.3 No.
justice. It is imperative that consumers receive their
compensation in full, a situation which does not currently
pertain in a number of key legal areas in Scotland. In some
situations, unregulated personal injury claims providers retain
percentages of their clients’ damages. In other areas, such as
clinical negligence, the lack of appropriate funding rules
means that legal fees may substantially exceed the
recoverable costs, leading to the net result that clients often
do not receive all of their compensation. The contrast with the
approach to funding in England & Wales is such that Scottish
consumers can truly be said to experience a lower quality of
justice in the relevant areas than their English counterparts;
other than claimants whose claim relates to a fatality, Scottish
consumers are left with lower damages from accidents not of
their making than would be the equivalent English claimants.
Access to justice and the interests of the Scottish consumer
demand a new approach.

Such an approach would provide strong financial incentives to
those avoiding or delaying payment to settle their obligations
prior to the issue of court proceedings.

We are also happy to support moves to encourage mediation
and ADR to resolve disputes outside the courts, though we
have concerns about the costs of mediation as we detail
further below.




                                                                                                                                            3
Response to Chapter 2
1. What contribution can public legal education make to           We would invite the Review to consider a recommendation
improving access to justice?                                      that the relevant Scottish authorities either set up their own
                                                                  public legal education task force or join forces with the Public
2.1 We believe that public legal education can make a very        Legal Education centre in England & Wales to widen the
substantial contribution to improving access to justice.          delivery of such education. A key goal, whichever strategy is
                                                                  adopted, should be the result that school pupils are taught
There is no doubt that access to justice in Scotland is           about human rights and responsibilities underpinning society.
diminished by perceptions around the complexity of the law
and legal processes. Although that may remain true of certain     We would also invite the Review to consider making
complex areas, such as litigation around intellectual property    recommendations on ways in which lawyers can be
rights, we are certain that improved public legal education can   encouraged and incentivised to provide public legal education.
radically alter this perception in many cases.                    For example, if solicitors were required to provide such
                                                                  education within their CPD requirements, that would facilitate
We are ourselves engaged in the provision of Scottish legal       greater take up of these initiatives.
education, on a pro bono basis, for a further education
college. The benefits of that project have been to provide the
students (who comprise a mix of Scottish and other EU             2. Are there any particular geographical or subject areas
nationals) with much greater knowledge of their rights. In        in which there are gaps in provision in relation to civil legal
addition to increasing their knowledge, the education body has    advice or representation? If so, where?
reported an increase in the students’ confidence as citizens,
arising from the course.                                          2.2 It is imperative in order to achieve access to justice that a
                                                                  form of capped initial legal funding should be readily available
To move matters forward, we would like to see public legal        in the field of clinical negligence. Our experience has shown
education as part of the standard schools curriculum. The         that the consumer is unwilling to seek a second or expert
current national curriculum for schools in England & Wales        medical opinion in clinical negligence matters if this has to be
states:                                                           self- funded. The low rates offered to practitioners for civil legal
                                                                  advice (in which term we include Advice and Assistance and
'Pupils should be taught about the legal and human rights and     Civil Legal Aid) has resulted in an increasingly lower number of
responsibilities underpinning society, and how they relate to     legal practices offering civil legal advice to consumers. This
citizens including the role and operation of the criminal and     has resulted in a reduced market from which the consumer
civil justice systems'                                            can choose representation both geographically and in terms of
                                                                  the number of specialists available. We believe the interests of
In England & Wales, the Government has set up the Public          many vulnerable consumers have been aversely affected as a
Legal Education and Support task force (“PLEAS”) whose            result.
website says:
                                                                  We would also advocate the amendment of the rules to
“Public legal education provides people with awareness,           include multi-party actions as we have explained in more
knowledge and understanding of rights and legal issues            detailed in response to question 6.23 below. As matters stand,
together with the confidence and skills they need to deal with    the absence of formal procedures for class actions in Scotland
disputes and gain access to justice.”                             precludes access to justice, particularly because of funding
                                                                  difficulties. This is an area recognised by the European Union
The task force has completed its work and its report is           as one where review is required. In that respect, we would
available for consideration at                                    refer the Review to the Opinion of the European Economic and
http://www.pleas.org.uk/news.html. Task force members are         Social Committee on collective actions and in particular the
now creating a Public Legal Education centre to lead the          discussion at paragraph 7.6 of the report on how systems to
strategy on this issue.                                           deal with such litigation might be funded.




                                                                                                                                         4
There is also a case for improved public legal education in this        4. What contribution, if any, can (a) “self–help” services
area. For example, awareness of hospital procedures and                 for party litigants and (b) court based advice services
complaints processes relating to medical activity is lower in           make to improving access to justice?
Scotland than in England & Wales.
                                                                        2.4 We believe both forms of service improve access to justice
3. To what extent is it (a) desirable or (b) feasible to                by improving public legal education. Services which offer self
design court procedures with a view to enabling litigants               help to consumers will reduce the amount of cases reaching
to take part in the process without legal representation?               an evidential hearing by offering resolution alternatives within
                                                                        the litigation process.
2.3 We believe the principle of litigants taking part in the
process without legal representation is desirable. However, we          In our experience, some consumer claimants seek principally
also believe it will be extremely difficult to implement such           an apology (especially in relation to lower value matters) rather
procedures in practice. To ensure that justice is achieved, rules       than an award of damages. Raising awareness of alternatives
must be promulgated to drive cases towards a swift                      to legal resolution of disputes and improving public education
conclusion. This follows from the Committee’s view,                     in general will reduce the level of litigation, improving the
expressed in paragraph 1.11 of the Consultation Paper (with             consumer experience and reducing costs to the court service
which we agree), that proportionality requires the resolution of        in the longer term.
disputes within a reasonable time.
                                                                        It is worth adding that lawyers working within the not for profit
Court procedures which either permit relaxation of the rules in         voluntary sector resolve many minor legal problems and such
certain circumstances, or remove the restrictive effect of rules        organisations are to be encouraged.
in other circumstances - in both cases with a view to enabling
litigants to play a greater part in the legal process - are likely to
operate in such a way as to obstruct rather than encourage              5. Are there any other issues which impact on access to
the swift resolution of court cases.                                    justice in Scotland which the Review should consider?

The existence of the court rules is a barrier, by definition, to        2.5 We believe the main issues have been identified by the
litigants taking part in the process without legal representation       Review but to gain a full understanding of issues the public
but without such rules, we do not believe that justice will be          perceive as having an impact on access to justice, it would be
wholly or adequately served. We believe the evidence of this            instructive for the Review to consider the conclusions of
can be seen in the many cases in which party litigants have             Professor Hazel Genn as reflected in her book “Paths to
been able to operate with greater flexibility than might be             Justice” (1999).
accorded legal practitioners. Although this approach is entirely
understandable to ensure party litigants are not prejudiced, the
resulting process in many such cases has been protracted                6. Is there a case for a new method of dealing with low
and unnecessarily expensive litigation. We do not believe it can        value cases? If so, should this be within the existing court
always be said that justice has been fully served to all parties        structure or separate from it? What kind of cases would
in such matters.                                                        be suitable for such treatment?

Therefore, while in principle desirable, we do not believe any          2.6 We would strongly recommend the exclusion of personal
steps should be taken to further encourage party litigants.             injury cases from any structure considered appropriate for
Instead, the system should enable all to have access to                 dealing with low value cases. We believe that personal injury
justice. If consumers cannot afford to pay, lawyers should be           actions should be dealt with principally by specialised centres
encouraged to act on a pro bono basis. In this regard, we               of excellence within the sheriff court. This would ensure that
would draw attention to the new section 194 of the Legal                there is consistency of decision making and would offer the
Services Act 2007 (in England and Wales) which provides for a           consumer a specialist service. Our experience of the Glasgow
form of costs recovery in pro bono cases.                               Personal Injury pilot has indicated that the timescale for
                                                                        resolution of a personal injury case dealt with by a specialised
                                                                        sheriff is significantly reduced. If a “lower” court structure was
                                                                        used for personal injury litigation this would result in even less
                                                                        consistency of approach and award than at present.


                                                                                                                                             5
Further, we would not advocate the use of a Personal Injury
Assessment Board (PIAB). The feedback we have received on
the PIAB system used in the Republic of Ireland is that the
interests of the consumer are not effectively served and it does
not provide access to fair justice. Indeed while waiting for a
decision to be reached by the PIAB as to whether a
compensation payment will be made, critical time can pass
during which the solicitor could be ingathering evidence in
relation to liability and quantum. Solicitors in the Republic of
Ireland do not wish to undertake any work during this period
of investigation by the PIAB. We would submit that the
solicitor’s role (particularly in the early stages) is critical in
personal injury claims. A solicitor with expertise in dealing with
personal injury cases can represent and support the vulnerable
consumer in a way that would not be applicable if a tariff
based system of awards was made the norm.

Further, the Scottish legal system has historically been based
on a non-tariff based approach. The benefit of this approach
can be seen in the awards made in relation to fatal cases
under section 1(4) of the Damages (Scotland) Act 1976. The
levels of award under this provision are in keeping with the
modern view of damages and have steadily increased in
recent years to reflect changing public attitudes. This
approach can be directly contrasted with the English tariff
based award system for fatal cases where access to justice
for bereaved families is overly restrictive not only in the level of
award but also in relation to those parties entitled to make a
claim. Our view is strongly that the preferable approach is not
to become entrenched in capped tariff systems and not
unduly to restrict the category of people afforded access to
justice.




                                                                       6
3. Does the current system of levying court fees affect              4. Are the current rules for recovery of judicial expenses
access to justice? If so, how and in what kinds of cases?            satisfactory?

3.3 We do not believe the current system of levying court fees       3.4 We regard the current rules for recovery of judicial
significantly affects access to justice in Scotland.                 expenses as broadly satisfactory in principle, in that expenses
                                                                     generally follow success. However, we believe it is no longer
We regard the level of court fees in Scotland as relatively          appropriate to make a distinction between agent/client
modest. A useful comparison may be drawn between the                 expenses and party/party expenses. We believe that a move
standard sheriff court ordinary cause issue fee of £57 and the       should take place towards a system of full costs recovery.
fees levied for equivalent procedure in England & Wales. We          This would help to ensure proportionality. Such a move would
have detailed here the table of court fees payable by parties        also encourage the greater settlement of disputes without
for issuing claims in England & Wales.                               resort to court proceedings by encouraging more reasonable
                                                                     offers by those liable to pay before litigation is commenced.

Issue costs                                                          We invite the Committee to review the Rules of Court in two
                                                                     specific areas. Firstly, there is currently the automatic fixing of
Claim   does not exceed £300                                 £30     a Diet of Assessment in relation to Summary Cause cases.
Claim   exceeds £300 but does not exceed £500                £45     This is unnecessary. In practice, agreement on expenses is
Claim   exceeds £500 but does not exceed £1,000              £65     reached between the parties in relation to the level of
Claim   exceeds £1,000 but does not exceed £1,500            £75     expenses to be paid. If there is a disagreement on the basis of
Claim   exceeds £1,500 but does not exceed £3,000            £85     the account then there should be the possibility of a hearing
Claim   exceeds £3,000 but does not exceed £5,000           £108     on application by either party.
Claim   exceeds £5,000 but does not exceed £15,000          £225
Claim   exceeds £15,000 but does not exceed £50,000         £360     Secondly, there is no facility at present to obtain an order for
Claim   exceeds £50,000 but does not exceed £100,000        £630     payment of an agreed account of expenses without taxation.
                                                                     The current practice is that even if the expenses are agreed
                                                                     between solicitors then the case must be remitted to the
The fees payable in Scotland to raise proceedings compare            Auditor of Court for a Diet of Taxation. An amount has to be
very favourably. A similar contrast between jurisdictions can be     paid by the pursuer for a Diet of Taxation to be fixed. If a
made in relation to the further court fees payable during the life   penalty was imposed on a third party for non-payment of the
of a defended court action. Against this background, we do           agreed account figure, this would reduce both court
not believe the level of court fees has an adverse effect on         administration time and the cost of litigation.
access to justice in Scotland.

There is however a danger that if protocols are used more            5. Are the current arrangements for the taxation of judicial
widely (as we advocate), this will diminish the amount of            accounts of expenses satisfactory?
litigation being pursued. If a conceptual approach was
adopted that the courts system had to be self funding, the           3.5 The current arrangements for taxation of judicial accounts
lower number of issued cases would inevitably mean that              of expenses are broadly satisfactory but we believe an
court fees would rise. This would affect access to justice and       approach similar to that operated in relation to judicial tenders
indeed might create a vicious circle where litigation is reduced     would be wise. We have seen such an approach operate in
further and court fees might rise higher still. We therefore         practice by auditors. This should be formalised. There is no
believe such an approach is wrong in principle.                      reason why taxation hearings should not be largely avoided by
                                                                     formal rules governing the award of expenses of the taxation,
As a final comment, we believe there is a strong case for            dependent on the approaches adopted by the parties prior to
incentivising the use of technological approaches to the             the hearing.
raising of court action by reducing court fees for those who
adopt technology where available. This is the approach
favoured in England & Wales where parties (including
individuals who may be issuing only one claim) may obtain
substantial discounts on issue fees by using electronic means
to commence proceedings.

                                                                                                                                           8
6. To what extent and in what respects does the                    8. What impact have speculative fee arrangements had on
availability of legal advice and assistance and legal aid          access to justice?
affect access to justice?
                                                                   3.8 Speculative fee arrangements have been useful to a limited
3.6 We refer the Committee to our comments in response to          extent but we do not believe they can be said to have had a
question 2.2.                                                      substantial effect on access to justice. In personal injury
                                                                   cases the reality is that speculative feeing agreements are not
                                                                   widely used in Scotland.
7. Are there specific areas in which you believe there is a
particular problem in obtaining funding for litigation?            A contrast can be drawn with the use of CFAs in England &
                                                                   Wales which have worked well, and are better regulated than
3.7 We have experienced issues with the funding of clinical        speculative actions in Scotland. We do not consider that
negligence cases in Scotland as we have detailed in response       speculative fee agreements, as currently constructed, form any
to question 2.2 above.                                             significant part of the solution which is needed. Instead, we
                                                                   would ask the Review to consider whether enactment of a
We believe a “middle income problem” exists for those families     direct equivalent to CFAs in England & Wales should be
who do not qualify for legal aid, but cannot be said to be         created in Scotland. This would also help in supporting greater
wealthy. Indeed, such a middle income problem was the              provision and take up of ATE insurance. We suggest that
driving force for the introduction of conditional fee agreements   fairness to the consumer requires that ATE premiums be
in England & Wales in 1995. In Scotland, in approximately half     recoverable. We would repeat that every effort should be
of all legal aid applications the applicant is due to pay a        taken to avoid satellite litigation around expenses if such a
contribution. For those families, where they do not have other     model was thought to be appropriate.
funding mechanisms (such as before the event insurance
cover), significant problems exist in relation to access to
justice.                                                           9. Should legal expenses insurance, including “before the
                                                                   event” and “after the event” insurance, have a greater role
We would certainly encourage the greater use of before the         to play in the funding of litigation in Scotland?
event and after the event legal expenses insurance as we
detail further in response to question 3.9 below.                  3.9 We believe strongly that before the event legal expenses
                                                                   insurance should have a much greater role to play in the
We believe a further issue exists in relation to group actions.    funding of litigation in Scotland. Such an approach to funding
Although Scotland has no significant group action history          would resolve many of the funding problems which currently
(beyond the informal situations mentioned by the Review), that     exist (such as the middle income problem to which we referred
does not mean that the need for group actions does not exist.      in response to question 3.7 above) without negative impact on
Without procedure to permit “group litigation orders” (as apply    the public purse or the consumer. Indeed, greater take up of
in England & Wales), we believe a major issue exists in relation   before the event legal expenses insurance is likely to decrease
to litigation funding. We would advocate here and for major        the take up of civil legal aid.
complex litigation generally a special fund (perhaps within the
legal aid system) to enable access to justice to be improved.      We also believe there is a greater place for after the event legal
We deal further with this concept in response to question 6.23     expenses insurance in Scotland but unless and until such
below.                                                             premiums are permitted to be recoverable, as is the case in
                                                                   England and Wales, we do not believe this is likely to improve
                                                                   access to justice.




                                                                                                                                        9
10. What impact would the ability to recover “after the
event” insurance premiums from unsuccessful parties
have on litigation?

3.10 The primary impact of recoverable after the event
insurance premiums would be increased access to justice. As
matters stand, the substantial premiums which exist in this
market are deducted from damages in a way which is
detrimental to the interest of Scottish consumers and, in some
cases, may act as a disincentive to them to pursue their rights.

If the law was changed such that after the event premiums
could be recovered, the result would be simply that those who
delay reasonable settlement will be exposed to payment of
after the event premiums. Therefore, if anything, such a move
is likely not only to increase access to justice but to encourage
compliance with pre-action protocols and avoid litigation in the
first place.




                                                                    10
Response to Chapter 4
1. Do you agree that the conduct of the civil business of            3. Should the sheriff courts be separated into civil and
the courts is adversely affected by the pressure of                  criminal divisions? What would be the advantages and
criminal business?                                                   disadvantages of such a separation?

4.1 Yes. We have experienced on numerous occasions the               4.3 Yes, we believe the sheriff court should be separated into
postponing of civil cases because sheriffs require to deal with      civil and criminal divisions primarily for the reasons identified in
criminal business. This is particularly damaging to the              response to questions 4.1 and 4.2. We believe that such an
reputation of Scottish justice when witnesses have travelled         approach would encourage more applicants to shrieval
from other jurisdictions such as England and Wales and are           positions and would consequently improve the quality of
then unable to be accommodated by the courts. Similarly, we          decisions made and the consistency of awards of damages.
have experienced courts being unable to accommodate                  We perceive that potential candidates for shrieval positions are
medically qualified experts who have attended for Proof and          discouraged from applying for the post by reason of having to
on occasion travelled significant distances for that purpose. In     deal with both civil and criminal business.
some circumstances, we have had difficulty thereafter with
experts agreeing to prepare reports for other clients.               Moreover, we believe that the growth in the complexity of civil
                                                                     law (in particular) makes it unrealistic for sheriffs to be
                                                                     expected to be expert in all aspects of civil law, let alone both
2. Should (a) some judges of the Supreme Courts and (b)              criminal and civil business. We believe such a separation
some sheriffs be designated to deal with civil business?             would be a necessary first step towards achieving the centres
                                                                     of excellence to which we have referred in response to
4.2 Yes, we believe that some judges and some sheriffs               question 4.4. below.
should be designated to deal with civil business. This would
help to avoid the difficulties to which we have referred in          The specialisation which would result from a separation would
response to question 4.1.                                            simply mirror the development of the legal profession itself in
                                                                     which much greater specialisation has taken place in recent
Moreover, we fully support the concerns summarised by the            decades.
Review Committee at paragraph 4.24 of the Consultation
Paper on whether it is reasonable or sensible to expect a
sheriff whose previous experience has been mostly in criminal        4. Should there be a greater degree of specialisation
practice to deal with civil business. We believe this to be          within the civil courts in Scotland? If so, in what types of
much more of an issue in the sheriff court. Without exception,       case and in which courts?
judges in the Supreme Courts have gained experience in civil
and criminal business, but this is not true of all sheriffs. The     4.4 Yes, we would agree that there should be a much greater
success of the Glasgow Personal Injury pilot - and the               degree of specialisation within the civil courts in Scotland.
reduced lifecycle of a litigated case as a result of early
intervention - illustrates the benefits of proactive and             We believe the increasing complexity of the law means that
knowledgeable sheriffs, experienced in the relevant subject          the quality of justice would be improved by appointing sheriffs
matter, steering cases at the front end of the litigation process.   to hear certain types of case.




                                                                                                                                            11
We believe strongly that the success of specialised courts             5. What are the key factors which influence the decision
such as the commercial courts in the Court of Session and              to raise an action in either the Court of Session or the
Glasgow sheriff court justifies the introduction of a Scotland         sheriff court where jurisdiction is concurrent?
wide approach to certain common types of litigation. Although
geographical considerations must not be ignored, to ensure             4.5 Court actions have been raised within the Court of Session
access to justice is preserved, we believe there is a case for         due to lack of consistency and the poor quality of decisions
perhaps 8 - 10 judicial centres of excellence across Scotland.         made by sheriffs operating within the sheriff courts throughout
These would operate in the larger towns and cities of each of          Scotland. This has made the outcome of decisions
the sheriffdoms (for example Inverness and Dumfries, as well           unpredictable. It has made the management of clients’
as Edinburgh and Glasgow). In each centre, sheriffs would be           expectations difficult. The introduction of the simplified Court
appointed with specialisation in certain types of law. Such            of Session personal injury procedure following the Coulsfield
sheriffs would have jurisdiction for all such matters within their     reforms have made the court rules simpler in the Court of
sheriffdom, in an analogous way to the jurisdiction enjoyed by         Session than in the Sheriff Court.
sheriffs principal. This would be similar to the system already
operated for employment tribunals.                                     This has resulted in relatively low value cases being raised in
                                                                       the Court of Session when such actions should not be
The options discussed elsewhere to reduce the first instance           commenced in Scotland’s highest legal forum. The solution is
jurisdiction of the Court of Session (with which we agree)             to offer a greater quality of specialist services in courts
highlight the need for greater consistency of sheriff court            throughout Scotland by the setting up of centres of
decision making.                                                       excellence.

An alternative, more radical, approach would favour the
introduction of specialised sheriffs with all-Scotland wide            6. In what, if any, types of case should (a) the Court of
jurisdictions and we would support such an initiative.                 Session (b) the sheriff court have exclusive jurisdiction?

Under either approach, we would encourage the                          4.6 We believe the primary function of the Court of Session
establishment of specialist courts to deal with each of                should be as an appellate court and therefore we do not
intellectual property rights, commercial actions, real actions         believe that any “routine” type of case should fall within the
(such as mortgage repossessions and landlord and tenant                exclusive jurisdiction of the Court of Session. The only
disputes) and personal injury claims. In each of these areas,          exceptions we would list would be (a) matters of great
but particularly the last two examples, the potential for a            importance such as, for example, actions in relation to the
degree of inconsistency has arisen in judicial decision making.        probity of political elections or issues involving other major
This is particularly true of disputes relating to real actions         public law considerations and (b) genuinely complex and
where in repossession matters it is not competent to issue             important private law matters, such as multi-party litigation or
proceedings in the Supreme Courts and where appellate                  very substantial damages claims.
decisions are few and far between.
                                                                       By way of contrast, we believe the sheriff court should have
By way of example, the Mortgage Rights (Scotland) Act 2001,            exclusive jurisdiction over all “standard” actions. We would
enacted relatively recently, has been the subject of a wide            include within the definition of “standard” all routine personal
variety of approaches both in relation to the appropriate              injury claims, actions relating to real rights (with repossession
procedure to be adopted for hearings under the Act and in              matters already enjoying such exclusive jurisdiction), debt
relation to substantive decision making. Although certain              actions and consumer disputes generally. We would be happy
provisions of that Act provided for a degree of judicial               to provide further definition of each of these types of case if
discretion, its current varied interpretation by all sheriffs across   that would be helpful.
Scotland leads to a considerable degree of uncertainty and, as
a consequence, slower and more expensive resolution of court           The procedure in all cases to be followed should be
cases. Specialised sheriffs appointed to deal with such cases          determined by the threshold or boundary (with consequent
would substantially improve this issue.                                case track) rather than by the court in which a pursuer (or his
                                                                       representative) chooses to raise the matter.




                                                                                                                                           12
7. Should the jurisdiction of the Court of Session and the           11. Given the range in value and complexity of civil
sheriff court be unified to create a single civil court?             business in the sheriff court, should there be a tier of civil
                                                                     court below the level of the sheriff court?
4.7 Yes in relation to actions of first instance. As stated in
response to question 4.6 above, we do not believe that it            4.11 We do not believe that a further tier of civil court is
remains appropriate for the Court of Session to be a court of        necessary if judicial centres of excellence are created in the
first instance in relation to routine civil matters.                 way that we have described in response to question 4.4
                                                                     above. Such centres of excellence are our preferred option for
                                                                     all forms of sheriff court civil litigation (and we believe the
8. Should the Court of Session become a court of appeal              majority of current Court of Session litigation could also be
only or should it retain a first instance jurisdiction? If so,       dealt with by shrieval centres of excellence).
for what types of action and why?
                                                                     However, if such a further tier was to be created, we believe
4.8 Yes. We believe that with certain very limited exceptions,       its place would only be in relation to fairly limited, low value,
the Court of Session should become a court of appeal only.           non-legally complex areas such as consumer disputes and
We have specified examples of the type of action for which it        debt matters. We believe that personal injury claims and
might retain a first instance jurisdiction in response to question   actions relating to real rights should be excluded from such a
4.6 above.                                                           lower tier.

                                                                     We do not believe it greatly matters whether there is a further
9. If the current structure of the courts is retained, at what       tier of civil court or whether there is simply another level of
level should the privative jurisdiction of the sheriff court         judiciary within the sheriff court.
be set?

4.9 The privative jurisdiction of the sheriff court should be no     12. Alternatively, should there be another level of judiciary
less than £5,000 and we would argue as a minimum that it             within the sheriff court to deal with “third tier business”?
should now follow the provisions in England and Wales where
all matters up to a value of £15,000 (which may rise following       4.12 We have answered this question in our response to
ongoing consultation to £25,000) are dealt with under the            question 4.11 above.
English “fast-track” procedure.

Indeed, if a “value” approach was to be adopted, we would be         13. Does the current division of the sheriff court into
comfortable with the Court of Session only having jurisdiction       distinct geographical jurisdictions present difficulties or
for personal injury claims above a threshold of £100,000.            does it have advantages?

                                                                     4.13 We believe the current division of the sheriff court into
10. Are the current powers to transfer cases between                 distinct geographical jurisdiction does present a number of
sheriff courts and between the Court of Session and the              difficulties. We would summarise these primarily as being a
sheriff court satisfactory?                                          lack of excellence in judicial decision making and an
                                                                     inconsistency of judicial decision making. There is also,
4.10 If the Review was to reduce the extent of first instance        however, a degree of inefficiency and inflexibility which might
litigation in the Court of Session, as we would advocate, rules      be improved by abolishing the geographical distinctions. For
should be promulgated to provide further clarity around when         example, in road traffic cases at present our current practice is
a transfer between the sheriff court and the Court of Session        to litigate in the jurisdiction where the accident occurred (albeit
should be permissible. In our view, transfers from the sheriff       we recognise there are other bases on which to found
court should only be permitted on cause shown and would be           jurisdiction). On occasion, confusion exists as to whether a
subject to a number of indicators being satisfied. We deal with      particular stretch of road is within a particular sheriff court’s
this subject further in response to question 4.19 below.             jurisdiction. Sometimes the recollection of the client as to
                                                                     exact locus has been wrong. A new approach to the
                                                                     distribution of the courts could solve many of these problems.



                                                                                                                                           13
The primary advantage of the existing structure is in permitting     As part of the Review, we would also hope that more
individuals more ready access to their local sheriff court.          consistent administrative practices would emerge across
However, we believe that the improvements in public and              sheriff courts in such a way as to achieve best practice
private transport since the structure of the sheriff courts          universally. To provide an example relating to process, in
developed and the greater availability of technology such as         Glasgow and a number of other sheriff courts, one is entitled
videoconferencing facilities (which might be installed in a          to assume that no notice of intention to defend has been
variety of geographical locations) mean that access to justice       lodged unless advised by the clerk. In other courts, the
could be preserved by alternative methods if it was otherwise        solicitor must check with the clerk’s office. In addition to the
thought favourable to abolish the current division of the sheriff    inefficiency created by different courts operating different
court into distinct geographical jurisdictions. It should be         practices, the checking of a negative unnecessarily takes up
possible for parties to request that a case be remitted from a       the time of the clerk and the solicitor, so adding to costs for
centre of excellence to a local sheriff court if there are           the consumer.
exceptional circumstances, such as the inability of a consumer
to travel to their nearest centre of excellence. However in this     A further example is that different courts adopt different rules
event it would follow that a specialist sheriff (normally resident   as to the way in which time to pay applications are dealt with,
at a centre of excellence) would hear the proof at the local         or as to whether pre-proof meetings are required (as in
sheriff court to ensure the best quality of justice.                 Hamilton, Aberdeen and Stirling sheriff courts) or not (as in
                                                                     most courts).

14. Are the current arrangements for dealing with                    Finally on this subject, we believe there is a case for much
undefended actions satisfactory?                                     greater use of technology to process undefended actions and
                                                                     we deal with this further in response to question 5.6 below.
4.14 No, we do not regard the current arrangements for
dealing with undefended actions as satisfactory. We agree
with the move in recent years to remove some of the                  15. Are the current arrangements for the disposal of cases
administration relating to undefended actions from the sheriff       raising issues of public or administrative law satisfactory?
to the sheriff clerk. However, we are often still faced with
delays of up to eight weeks for the issue of an extract decree       4.15 We do not believe it is necessary for all judicial reviews to
in an undefended civil action. In such circumstances, the            be at Supreme Court level. The example given at paragraph
quality of justice is adversely affected as those entitled to        4.46 of the Consultation Paper illustrates the point precisely. In
enforce their decree are deprived of the ability to pursue           particular, we believe judicial reviews involving decisions of
enforcement measures until the decree is received. We do             non-governmental organisations should all be capable of
not understand why it should not be possible for the                 resolution at sheriff court level.
production of decrees to become largely automated, subject
always to appropriate quality controls. One option would be to
place the onus on parties to present the order which they are        16. Are there types of business in the sheriff court which
seeking from the court (in a way similar but less complex to         could more efficiently or appropriately be dealt with by
the way in which submissions as to findings in fact or law are       administrative rather than judicial process? For example,
on occasion presented to sheriffs at the conclusion of a proof       are the current arrangements for the disposal of
or an inquiry) to facilitate the production of the extract decree    commissary business satisfactory?
by the court.
                                                                     4.16 We do not conduct a great deal of commissary work in
                                                                     Scotland but we do not understand why it should require to
                                                                     be dealt with by the sheriff court instead of an alternative
                                                                     administrative body.




                                                                                                                                          14
17. Is there a case for a national sheriff court which would       20. Are the existing appeal arrangements satisfactory?
allow cases to be raised at sheriff court level anywhere in
Scotland? If so, what appeal arrangements should there             4.20 No, we do not believe the existing appeal arrangements
be?                                                                are satisfactory. The current rules are overly technical and in
                                                                   some cases difficult to justify.
4.17 Yes, we believe that a nationwide sheriff court which
would allow actions to be raised at sheriff court level anywhere   Firstly, we do not believe it is appropriate to continue with the
in Scotland is a positive idea provided it is linked to the        dual system in terms of which a right of appeal lies from the
centres of excellence (for disputed matters) to which we have      sheriff either to the sheriff principal (and thereafter on to the
referred in response to question 4.4 above.                        Court of Session) or, alternatively, directly to the Court of
                                                                   Session. We believe a degree of rationalisation is required.
In terms of appeal arrangements we would recommend a
system of appeals to specialised sheriffs principal for those      For certain types of matter, appeal should lie only to the sheriff
types of case to which the centres of excellence apply (and        principal and such an appeal should be final. This should be
we have given examples in response to question 4.4) with the       particularly true of appeals from centres of excellence. If this is
remaining types of claim being subject to the appellate            thought to be a step too far, and in any event for those other
jurisdiction of one or two “general” sheriffs principal.           types of case where appeal might continue to lie from the
                                                                   sheriff to the Inner House of the Court of Session, we believe
                                                                   that the leave of the Inner House should be sought before the
18. Is there a case for all sheriffs to have an all-Scotland       appeal could be pursued. For the avoidance of doubt, we
jurisdiction?                                                      recognise that a right of appeal should always be made
                                                                   available; the main question is simply whether the prospective
4.18 Yes, we believe there would be benefits to this approach      appellant should be directed to the sheriff principal rather than
though in practice for reasons of geographical convenience it      to the Inner House.
may be that the day to day arrangements would not be wholly
dissimilar to present arrangements. However, this would
provide greater flexibility to cover areas where additional        21. Should the office of sheriff principal be retained or
resources are required at short notice and would also facilitate   should an alternative office be created? Should that office
the centres of excellence to which we have referred in             be judicial or administrative or both?
response to question 4.4.
                                                                   4.21 We believe there is undoubtedly merit in the office of
                                                                   sheriff principal but our view is that this should be a judicial
19. If the sheriff court becomes the primary court of first        office only. We believe that the administrative roles of the
instance, should there be a power of transfer from the             office should be removed and passed to the civil service.
Court of Session to the sheriff court and a power for the
sheriff to seek the leave of the Court of Session to
transfer a case there? If so, what factors should be taken         22. Should the majority of statutory appeals continue to
into account?                                                      be dealt with by the Inner House of the Court of Session?

4.19 Yes, we believe that it should be appropriate for a power     4.22 No, we believe the majority of statutory appeals should
of transfer to be made available to allow the Court of Session     be dealt with at shrieval level. However, it may be (with
and the sheriff court to transfer cases between them in either     reference to our response to question 4.20 above) that any
direction. However, this should only be on cause shown by          right of further appeal in such matters should lie not from the
reference to specified factors such as (in the case of transfer    sheriff to the sheriff principal but (with leave) from the sheriff to
from the sheriff court to the Court of Session) complexity, the    the Inner House of the Court of Session.
importance of the matter and so on. It would be helpful to
have written opinions on decisions relating to such a power
(as opposed to verbal reasoning only) as this would allow
practitioners to identify when the power should be sought and
would ensure that an element of consistency is achieved.



                                                                                                                                           15
23. Should there be a limit to the number of levels of
appeal through which an action can progress? If so, how
many levels would be appropriate? What provision, if any,
should be made for exceptional cases and how should
these be defined?

4.23 Yes, we believe there should be a limit to the number of
levels of appeal through which an action should be
progressed.

We would argue that in the majority of circumstances, one
right of appeal is sufficient. An interesting comparison here lies
with the High Court of Justiciary, which in dealing with matters
of liberty deals with highly important matters, where only one
right of appeal is available. We therefore do not believe that
an appeal should lie in all cases from the sheriff principal to the
Inner House of the Court of Session (but we would draw
attention to one possible exception from this rule, namely
where the decision of the sheriff is overturned by the sheriff
principal). We recognise that a right of appeal should continue
from the Inner House to the House of Lords, but only for the
most exceptional cases.


24. What are the advantages and disadvantages of
reliance on temporary judges and part-time sheriffs?

4.24 We believe that the disadvantages of reliance on
temporary judges and part time sheriffs outweigh the
advantages. Among the disadvantages we would list a
negative impact on public confidence in the judiciary (which is
in substance unfounded, but we believe exists nonetheless) in
that a decision by a “Temporary Judge” is perceived to be less
valuable than that of a Judge.

We believe also that it is inappropriate for a Judge to be
practising as an advocate or solicitor for part of their working
week and as a Judge for the remainder of the time. Such a
dual approach may give rise to the appearance of potential
conflict even though no actual conflict exists.

In terms of advantages, the existing structure provides an
element of flexibility regarding the number of judicial
appointees which would otherwise be lacking. However, at
least in relation to sheriffs, we believe this would be partly
offset by the introduction of sheriffs with an all-Scotland wide
jurisdiction as we have discussed in response to question 4.4
above.




                                                                      16
Response to Chapter 5
1. Should the rules of civil procedure have an overriding             3. If so, how should this be done and at what point or
objective or statement of philosophy and, if so, what                 points in the progress of a dispute?
should the main elements of that overriding objective or
statement of philosophy be?                                           5.3 Mediation can be encouraged by awards of expenses
                                                                      looking at the conduct of the parties but we do not believe it
5.1 Yes, the rules of civil procedure should have the overriding      would be correct to specify mediation (for example in rules of
objective of achieving justice and access to justice based on         court) as being required at particular points in the process.
the principles enunciated by the Civil Justice Council in their       Where the court feels very strongly that mediation is the
first report on that subject, as set out by the Review at             appropriate way forward on a particular case, a power similar
paragraph 1.12 of the Consultation Paper. In addition to              to the existing “remit to a person of skill” should be capable of
dealing justly with the substantive aspects of the case, this         being exercised by the court on a case by case basis. It is
means achieving justice with speed, so far as possible with           also always the case, of course, that judges or sheriffs may
certainty and in such a way that the successful party is not          sist cases for discussion between the parties where they
prejudiced. We believe this last point requires a system of full      consider that appropriate. In either of these events, the cost
costs recovery.                                                       of mediation should fall to be part of the judicial expenses of
                                                                      the case.

2. Should the court (a) encourage, (b) require or (c) in              4. Are there particular kinds of disputes in which the use
some other way facilitate the use of mediation or other               of mediation or other methods of dispute resolution is not
methods of dispute resolution?                                        appropriate and in which a judicial determination is
                                                                      essential? Please specify.
5.2 We believe the court should encourage mediation in
appropriate cases (and the Review should encourage greater            5.4 In circumstances where quantum is not substantially open
judicial awareness of mediation), but we would resist any             to negotiation, and where liability is beyond doubt, we do not
contention that mediation should be required. The principal           consider mediation to be appropriate. An example would be a
difficulty with such a position lies with the cost of mediation.      routine claim for mortgage arrears due by a customer to a
The average cost of a day’s mediation is £1,000 per day and           bank where neither the sum owing nor the validity of the
the cost of having mandatory mediation in (for example)               security are at issue.
personal injury claims would be disproportionate. The cost of a
day’s mediation in such cases would exceed the average                On the other hand, in cases where the quantum of the matter
solicitor’s costs under the pre-action protocol for dealing with      is not necessarily fixed (either because it is dependent on a
all matters of liability, causation, quantum and settlement in a      number of contentious findings in fact or because it is
standard claim. Therefore, unless the state is prepared to            dependent on interpretation of prior case law), then there may
provide mediation free to parties (that is, as a cost to the state)   be a greater role for mediation. We would repeat our concern
we do not believe that mediation can or should be required.           in relation to the cost of mediation as we have outlined in
                                                                      response to questions 5.2 and 3 above.


                                                                      5. What form should mediation or other methods of
                                                                      dispute resolution take and how should this be funded?

                                                                      5.5 We believe the form of mediation should always be a
                                                                      meeting between the parties, but in terms of funding, we
                                                                      believe only that state funding across the board is likely to
                                                                      result in successful take up of mediation. A further
                                                                      consideration is that there are few qualified mediators in
                                                                      Scotland. A programme should therefore be considered to
                                                                      train more mediators.




                                                                                                                                          17
6. In what respects can modern communications and                    7. To what extent should the court control the conduct
information technology be harnessed to improve access                and pace of litigation?
to the civil courts?
                                                                     5.7 We believe the court should seek to control the conduct
5.6 A forward thinking approach to information technology can        and pace of litigation wherever possible. Indeed, we regard
very substantially improve access to the civil courts.               pro active judicial case management as essential. The best
                                                                     way to achieve this in practice is by involving the principal
In England & Wales, we are major users of the County Court           agents wherever possible. That said, we believe it is no longer
Bulk Centre which allows the processing of significant               appropriate to require appearance in person due to the
quantities of routine litigation without undue impact on judicial    demands of modern life. Indeed, we suggest that any
time. The English Money Claims Online system is similar and          requirement to attend in person by principal agents would
brings consequent benefits to the judicial system. It also           soon become unworkable and impractical, and merely add to
improves access to justice by allowing party litigants to issue      the costs of Scottish consumers. Therefore we believe the way
court actions more easily. We understand that more than 50%          forward is to have proactive judicial case management,
of routine litigation in England & Wales is now commenced by         involving principal agents, but that this should be achieved by
one of these two routes and the effect on County Courts, in          way of teleconferencing or videoconferencing facilities.
terms of administrative and efficiency benefits, has been
significant.
                                                                     8. What types of case would benefit from (a) judicial case
The UK Government is committed to extending the provision            management and what types of case would benefit from
of online services in the judicial area. For example, the Ministry   (b) case-flow management?
of Justice (at that time, the Department of Constitutional
Affairs) recently introduced Possession Claims Online, a             5.8 We believe the general approach should be to require that
system to allow mortgage possession claims in England &              all cases are the subject of judicial case management with
Wales to be processed in a partly electronic manner.                 exceptions provided where that is not appropriate rather than
                                                                     for the express inclusion of specified classes of case.
Although the smaller population of Scotland means that less
economy of scale would apply to any similar such features of         Of the two models, we prefer judicial case management as in
the Scottish court system, we are nonetheless convinced that         our experience, it is the better of the two options in narrowing
significant benefits could be realised by a similar approach to      the issues in disputes and encouraging early resolution of
the use of technology to issue and process cases. These              matters. Certainly we believe that all the common forms of
would include the substantial reduction of shrieval time spent       litigation with which we are involved such as personal injury
on administrative matters.                                           claims, debt recovery matters, consumer disputes, and
                                                                     mortgage repossessions would benefit from a revised judicial
In addition to general access to justice and reduced impact on       approach in accordance with either of the options identified in
judicial time, we believe identification of disputed issues would    the question.
be improved by this method and that the speed and cost of
litigation can both be moved in a positive direction. For            The success of the Commercial Courts in Glasgow Sheriff
example, involvement of principal agents in all matters is only      Court and the Court of Session, and of the Court of Session’s
likely to be successfully achieved by the wider introduction of      Personal Injury Rules, prove that the existing civil court
teleconferencing facilities.                                         procedure (at least in the sheriff court, as currently governed
                                                                     largely by the Ordinary Cause Rules) is capable of significant
Moreover, the geographical issues bearing on access to               improvement.
justice, discussed in Chapter 4 of the Consultation Paper,
might be substantively addressed by the installation of
videoconferencing facilities.

Increased use of technology should apply not only to the
“legal” parts of the process but also to administrative areas
such as the ability to communicate with court clerks by email
and the digital recording of evidence.


                                                                                                                                        18
Although the Ordinary Cause Rules were a major step forward
in themselves, we believe their effect has been diluted with the
passage of time. For example, in many cases, Options
Hearings no longer provide the detailed judicial case
management which was once an almost universal feature.

This is also the case for the Summary Cause Calling Date. The
Summary Cause Rules expressly provide that at this hearing
the sheriff should try to determine the issues and resolve the
case. This simply does not happen due to volume of business.
The Case Management Conferences required in the
Commercial Court in Glasgow, with telephone attendance by
principal agents as standard, provide a welcome contrast. To
facilitate such attendance, we believe that telephone
conferences should be permitted and encouraged for all
routine hearings in the sheriff court (from which of course we
exclude proofs, debates and appeals).

In larger courts, the fact that cases tend not to stay before the
same sheriff means that momentum can be lost. Judicial case
management, exercised by sheriffs in centres of excellence
would bring significant improvement to the quality, speed and
cost of justice.




                                                                    19
Response to Chapter 6
1. What are the advantages and disadvantages of pre-                3. Should compliance with pre-action protocols be
action protocols?                                                   voluntary or compulsory?

6.1 The primary advantage of pre-action protocols is to reduce      6.3 Compliance with pre-action protocols should be
the amount of litigation which is commenced in the courts and       compulsory particularly in routine situations such as low level
so to secure justice for Scottish consumers more quickly and        personal injury claims. We have extensive experience of the
cost effectively. Protocols encourage reasonable offers pre-        voluntary pre-action protocol in this area and we have found
litigation and bring greater certainty of outcome both in terms     its voluntary nature (a) to lead to disputes between opposing
of substantive result, speed and costs.                             sides as to relatively modest costs issues; and (b) to result in
                                                                    deliberate avoidance of the protocol by some parties. It is
Pre-action protocols by definition do lead to front loading of      difficult though not impossible to adopt a different approach to
costs but we believe the benefits to the consumer in terms of       parties who do not engage in the protocol. If a differential
their experience outweigh any concerns around that issue.           approach is not adopted, an incentive is made available to
                                                                    those parties not participating in the protocol to the detriment
The protocol for dealing with personal injury claims agreed         of all those seeking to reduce the amount of litigation.
between the Forum of Scottish Claims Managers and the Law
Society of Scotland has been successful in achieving an             There is currently no sanction for nonparticipation in the
element of predictability and accountability within the claims      protocols. Sanctions are hugely important and underpin the
process and in reducing average settlement times. We have           success or failure of both protocols and case management.
embraced this fully. However, its usage can be improved in a        Nonparticipation encourages litigation. We believe participation
number of ways as we detail further in response to question         should be made compulsory by a Scottish Statutory
6.3 below.                                                          Instrument or similar piece of subordinate legislation.
                                                                    Moreover, the protocols would need to be supported by
                                                                    robust judges or sheriffs who would apply sanctions for failure
2. Should there be a greater use of pre-action protocols?           to comply with them.
If so, in what courts and for what types of action?
                                                                    We believe this is an excellent opportunity to level the playing
6.2 In England & Wales, pre-action protocols also exist for         field between claimants and insurers and also between the
judicial reviews, construction and engineering disputes,            jurisdictions of Scotland and England & Wales. The Review
defamation, possession claims based on rent arrears, housing        has the opportunity to take the best of the Woolf reforms in
disrepair cases and for the resolution of clinical disputes. We     England & Wales but to take this further and ensure that the
believe there is a case for the use of protocols in each of these   costs part of the proportionality equation is also dealt with fully,
areas in Scotland.                                                  to avoid satellite litigation around this issue. This approach
                                                                    would emphasise the importance of seeking to resolve certain
We would add that the construction of protocols should              types of matter before litigation, such that the system and the
always involve experienced practitioners from the specific legal    consumer journey would be improved overall. Even if
areas to ensure relevant protocol matters are taken into            extension of the existing protocol further front loaded costs,
account.                                                            the new regime would very much be in the best interests of
                                                                    the consumer.

                                                                    Moreover, protocols bring clarity to the claims process. For
                                                                    example, a Statement of Valuation must be intimated listing
                                                                    the heads of claim and their values. This is very similar to the
                                                                    approaches of the Personal Injury Rules in the Court of
                                                                    Session, and of the Sheriff Court Summary Cause Rules, but it
                                                                    does not reflect the procedure required by the Sheriff Court
                                                                    Ordinary Cause Rules.




                                                                                                                                           20
The various sets of Rules and the protocol should be               6. Should there be a single set of rules of civil procedure
examined together such that compulsory use of the protocol         in both the Court of Session and the sheriff court?
translates into more streamlined litigation where that does
prove necessary (though for the avoidance of doubt we              6.6 Yes.
believe that the subordinate legislation we propose would
significantly reduce litigation incidence in this area). For
example, use of the protocol before litigation would reduce the    7. Should there be a single initiating document for (a) all
incidence of Statements of Valuation, during the litigation        types of action and/or (b) at all levels of the court
process, being lodged with the words “To be advised” marked        structure? If so, what format should that document take?
against various heads of claim.
                                                                   6.7 Yes, we believe that a single initiating document should be
It follows from this (and from our comments on the jurisdiction    made available for as many types of action as possible. This
of the Court of Session to deal with personal injury cases,        would be a similar approach to that adopted in England and
above) that those cases which are litigated are likely to be       Wales where the N1 claim form is used to initiate a variety of
more complex in nature and that is a further reason why we         actions under Part 7 of the Civil Procedure Rules.
believe personal injury claims should fall to be dealt with in
shrieval judicial centres of excellence.
                                                                   8. To what extent should a system of abbreviated
                                                                   pleadings be introduced?
4. Should there be a greater requirement for leave to bring
or to take steps in proceedings? If so, at what points in          6.8 We believe a system of abbreviated pleadings is an
proceedings and what criteria should the court apply in            excellent idea and has worked well in those specified types of
deciding whether leave should be granted?                          action in which it has been made available to date. The
                                                                   abbreviated pleadings which presently apply to personal injury
6.4 We believe there should be greater requirement for leave in    claims in the Court of Session should be extended to the
relation to appeal matters and we have detailed our position       sheriff court. We believe this will reduce the lifecycle of litigated
on this in response to questions 4.20 and 4.23 above.              personal injury claims. This would also reduce costs to the
                                                                   consumer, if the approach was joined up with the personal
More generally, we do not believe that a requirement for leave     injury pre-action protocol, by reducing the legal work required.
to take steps in proceedings should be made greater but that       For example, the Statement of Valuation required for
instead the answer is more proactive judicial case                 compliance with the pre-action protocol should be the same
management as we have detailed in response to questions 5.7        as that required in abbreviated sheriff court pleadings.
and 5.8 above.

                                                                   9. Are the current arrangements for summary disposal
5. Are the current arrangements for making the rules of            satisfactory?
civil procedure satisfactory? Please give reasons for your
views.                                                             6.9 Yes.

6.5 We do not believe it is appropriate to have two separate
rules committees. The fact that the Supreme Court now has
more abbreviated rules in personal injury claim than the sheriff
court is a good example of why one rules committee is
desirable.

We would also encourage greater feedback from the rules
committees. As an example, we responded to the
Consultation Paper of the Sheriff Court Rules Council on
Information Technology in the Sheriff Court during 2006 and
have had no feedback to our proposals.



                                                                                                                                           21
10. Should routine procedural matters in both the Court of        Further, in Scotland a significant amount of court time is
Session and the sheriff court be dealt with by judges             utilised taking oral evidence from witnesses, particularly in the
(perhaps at a more junior level) designated for that              form of examination in chief. A major reduction in the hearing
purpose?                                                          times for cases could be achieved if written statements were
                                                                  to be intimated and lodged in court prior to the Proof. Further,
                                                                  there should be the simultaneous exchange of expert evidence
6.10 Yes, we believe this would be a positive step and lead to    in relation to medical reports. This would ensure that all
greater efficiency within the courts. It would provide a useful   evidence can be put to experts prior to proof and their views
“starting point” for more junior Judges and sheriffs while        ascertained more readily.
freeing up the time of more senior Judges and sheriffs to deal
with more substantive matters.
                                                                  13. In the conduct of substantive hearings should there be
                                                                  greater use of written rather than oral arguments?
11. Are the current arrangements for dealing with routine
procedural business satisfactory?                                 6.13 Yes, we believe to make the best possible use of court
                                                                  time, there should be greater use of written rather than oral
6.11 No. We do not believe the current arrangements for           arguments. Since the introduction of the sheriff court Ordinary
routine procedural business are satisfactory. Our experience is   Cause Rules it has been necessary under Rule 22 to prepare
that there is no consistency of approach by the shrieval bench    a Note of basis of preliminary plea in relation to matters sought
in dealing with procedural matters. For example, the Ordinary     to be canvassed at debate or proof before answer. There is no
Cause Rules in the sheriff court have developed                   reason why these should not be expanded to provide a more
“miscellaneous procedure” courts which we do not believe          full statement of argument allowing Judges or sheriffs to focus
were ever intended under the Options Hearing structure set        on matters requiring clarification rather than, as at present,
down by the 1993 Ordinary Cause Rules. There is no                taking up Court time with many matters which are unlikely to
certainty about the way in which routine business will be         be contested or which may be regarded as settled law.
conducted or more particularly the time at which a case will be
heard, and again we believe that more proactive judicial case
management is the answer.                                         14. To what extent should there be an earlier and/or wider
                                                                  disclosure of evidence?

12. Should the court have a greater degree of input in            6.14 Scotland has a solid tradition of disclosure already but
allocating the length of time to be set aside for a hearing?      we would welcome any moves which further encourage the
Should hearings be time limited or conducted by                   identification of facts earlier. The requirement to lodge medical
reference to a timetable determined by the court?                 reports in personal injury claims at commencement has been a
                                                                  great success and where appropriate, this approach should be
Yes, we believe the court should have greater input in            extended more widely. We would also advocate a new
allocating the length of time set aside for a hearing and that    approach to examination in chief and the exchange of expert
parties should be require to adhere to estimated timescales       evidence as we have detailed in response to question 6.12
with significant sanction applied where that is not possible.     above.
We would also be in favour of hearings being time limited
which is, of course, the system operated by the United States
Supreme Court.




                                                                                                                                      22
15. To what extent should the court have control over the             18. Should written judgments be required in all cases?
use of expert and other evidence?
                                                                      6.18 No, we do not believe written judgements should be
6.15 To some extent the court has control over the use of             required in all cases if there is no complex legal aspect to the
expert evidence at present in that it can express views as to         matter. However, a verbal explanation should always be given
the employment of experts by way of awards of expenses.               to allow solicitors to explain the result to their clients.
However, we would encourage the introduction of a system in
terms of which parties are incentivised to use only one expert.
Experts now universally regard their primary duty to the court        19. Should the courts have greater powers to impose
(as they should), and we believe the use of “adversarial              sanctions for non-compliance with court rules or where a
experts” at least in routine matters is diminishing. We have          party or his representative has behaved unreasonably? If
conducted discussions with the Forum of Scottish Claims               so, what should these be?
Managers for some time to determine whether it might be
possible to agree that our clients and their insurer members
would submit to a joint panel of experts, the consequence of          6.19 We believe that the appropriate sanction is by way of
which would be that only one expert was required to be                awards of expenses. As the court already has power to
instructed in routine personal injury matters.                        award expenses on an agent/client basis (or personally against
                                                                      solicitors) where it considers that appropriate, we believe the
                                                                      existing powers are satisfactory but that the sanctions might
16. Should a system of pursuers’ offers be introduced into            be used more widely than they are at present. If a system of
the civil courts procedure? If so, what features should               full costs recovery is introduced, as we have advocated
such a system have?                                                   elsewhere in this response, then greater powers to impose
                                                                      sanctions would be necessary.
6.16 Yes, but only where the level of the award which would
be made is discretionary (as with personal injury claims). The
primary feature should be to mirror the features which apply to       20. What measures should be available to the court to
tenders, permitting the successful pursuer an uplift of               identify and manage unmeritorious causes or appeals
expenses where the pursuer’s offer is later found to have been        brought by party litigants?
reasonable.
                                                                      6.20 We are uncertain that new measures are required beyond
It would also be appropriate to follow the English “Part 36”          the existing powers. Of more benefit would be a change in
model and permit awards of penalty interest in such                   approach or emphasis to recognise that accommodating all
circumstances. We do not believe it would be equitable for            the wishes of a party litigant is not always the right solution in
such offers to be made available in circumstances where the           the interests of justice. We would recommend a limit to the
pursuer is likely to proceed or fail on an “all or nothing basis”     number of appeals through which a cause may progress as
as is often the case with (for example) contractual disputes.         we have detailed in response to question 4.23 above.


17. Should civil jury trials be retained?                             21. Is the current legislation on vexatious litigants in need
                                                                      of reform and, if so, how should that be done?
6.17 We would advocate the retention of civil jury trials as a
mechanism for ensuring that societal attitudes towards                The Vexatious Actions (Scotland) Act 1898 provides in our
appropriate compensation levels for pain and suffering                view sufficient means on controlling potential difficulties in this
continue to be reflected and updated. Recent awards relating          area. Again we believe a change in emphasis rather than new
to accidents involving fatalities illustrate the importance of this   legislation is the important factor.
principle. We accept that there may be a case to restrict the
availability of civil jury trials but we believe that as a minimum,
parties should have the right to seek jury trial where there are
novel or highly important matters at stake.




                                                                                                                                            23
22. Should a person without a right of audience be                  24. Is the rule governing the procedure to be followed for
entitled to address the court on behalf of a party litigant         judicial review satisfactory?
and, if so, in what circumstances?
                                                                    6.24 As we stated in response to question 4.15 above, we
6.22 We believe the current rules are sufficient on party           believe it is unnecessary for all judicial reviews to be
litigants. More generally we would encourage a move towards         conducted in the Court of Session. We also believe a pre-
non-qualified employees of solicitors’ firms being permitted to     action protocol should be introduced for judicial reviews
appear more fully in court. The court would have the comfort        equivalent to that which applies in this area in England &
that ultimate responsibility for the conduct of the non-qualified   Wales. Otherwise, we believe the court procedure to be
persons rested with their supervising solicitor.                    followed is broadly appropriate.


23. Would it be desirable to introduce separate
procedures for multi-party litigation?

6.23 Yes, we support the introduction of separate procedures
for multi-party litigation.

We would recommend that the new procedures broadly follow
the format of the “Group Litigation Orders” which can be
made in England & Wales. The Review should also consider
the work of the Civil Justice Council and the European
Commission on procedures to facilitate “consumer redress” or
“collective redress” type actions. We would also refer the
Review to the publication “Reform of Collective Redress in
England & Wales: A Perspective of Need” by Professor
Rachael Mulheron which can be accessed at
http://www.civiljusticecouncil.gov.uk/index.htm. For example,
consideration should be given to procedures to permit
recovery in cases of cartel activity.

Whether or not such approaches are adopted, it is essential
for the introduction of multi-party procedure to work that any
new provisions should be back by appropriate expenses rules
to deal with funding issues. Without clarity around expenses,
we do not believe any new provisions in this area would be
likely to succeed.




                                                                                                                                 24
Conclusion
We hope you find our comments helpful and interesting. For
further information, or to discuss any aspect of our response
to the Consultation Paper, please contact:


Mark Higgins
Irwin Mitchell
123 Elderslie Street
Glasgow
G3 7AR

0141 300 4300
Mark.higgins@irwinmitchell.com
www.irwinmitchell.com




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