Paul Brown on the Courts Reform (Scotland) Bill

Image Our Chief Executive Paul Brown gave evidence to the Justice Committee on Tuesday 25th March on the Courts Reform (Scotland) Bill.  It is the second time this year that LSA has given evidence to the Scottish Parliament following our submission on the Housing Scotland (Bill) in January.

The Bill seeks to implement recommendations contained in the Report of the Scottish Civil Courts Review (2009), which was led by Lord Gill. The Review concluded that the Scottish civil courts provide a service to the public which is “slow, inefficient and expensive” and recommended that “the court system has to be reformed both structurally and functionally”.

The main provisions in the Bill include: an increase in the privative jurisdiction of the sheriff court; creation of ‘summary sheriffs’; establishment of a specialist Scotland-wide court; judicial specialisation; creation of a new Sheriff Appeal Court; changes in the way petitions for judicial review should be brought; new procedures relating to criminal and civil appeals; and merger of the Scottish Courts Service and Scottish Tribunals Service.

Below Paul outlines his views on some of the key sections of the Bill.

Judicial Review

In terms of Section 85 it is proposed that an application for the Supervisory Jurisdiction of the Court (Judicial Review) must be made before the end of the period of three months beginning with the date on which the Grounds giving rise to the application first arise or such longer period as the Court considers equitable. This proposal, of course, contrasts with the current situation where there is no formal time limit.

It is our view that such a deadline would be a serious mistake and we would urge the Committee to recommend that the deadline be extended if not to a year at the very least to six months.

We appreciate that it may be considered appropriate that there be some form of deadline to give a discipline to the consideration of such issues as well as to avoid Government or other organisations having decisions challenged, whether successfully or otherwise, many months if not years after they were taken. Acceptance of the principle of a deadline is very different from acceptance of the deadline proposed. The three month deadline will only be reasonably easily manageable in either comparatively straightforward matters or in matters where the Applicant, and/or the solicitors have an established routine. Thus, Legal Services Agency regularly threatens, and sometimes raises, Judicial Review in disputed homelessness matters and community care matters.

We know the law well, we are in regular contact with Junior Counsel who are also familiar with the law and we are familiar with the approach that the Scottish Legal Aid Board takes to the matter.    It is however a very different matter where the policy or decision being challenged is novel and where substantial research may be necessary, for instance through a Freedom of Information Application (a 40 day time limit).

In complex or novel matters the whole decision making process of the public authority will require to be investigated with Minutes of meetings, correspondence and so forth obtained. Save in emergency matters (such as a homelessness matter) it cannot be assumed that Applicants will consult a solicitor, far less start investigating matters immediately after a decision has been taken.

A delay of a few weeks would be perfectly normal. As the Committee will no doubt be aware, as soon as the application is raised, the permission hearing will require to be prepared for,  written evidence in support of the application lodged and copies of any documents upon which the Applicant proposes to rely and a list of essential documents for advance reading also lodged and intimated. Whilst it is accepted that presumably the Court may agree to the matter being sisted or adjourned to permit more time for the preparation, such an application might be vigorously opposed by the Respondent. Furthermore, and in any event, the drafting of the relevant application and the preparation of a Legal Aid application will all require this work to be done beforehand. It may be said that of course in England there is such a three month deadline.

As other organisations giving evidence have commented, the position in England is very different with a tradition of Judicial Review and indeed a well established specialist law centre.   In addition, there are very well known specialist law firms. Little of this “infrastructure” exists currently in Scotland. The position would be still more difficult for community, charitable and voluntary organisations (NGO’s). Until recently, of course, it was difficult if not impossible for such organisations to embark on Judicial Review (unlike the position in England).

The law in Scotland now allows for a single test in which the Petitioner for Judicial Review must demonstrate a “sufficient interest”.   Thus NGO’s in theory can take action. In addition procedures have been introduced to moderate Petitioner’s liability for the legal expenses of a successful Respondent.  (Protected Expenses Order) These are important reforms which allow access to justice to go someway to approximate that in England and Wales.

The new law however is novel. If NGO’s are to have any chance at all of availing themselves of the new law they must be given a reasonable amount of time in order to take up the remedy, Judicial Review, now available.   A three month deadline is, quite simply, far too short. Not only will a Petitioner organisation have to be find a solicitor, prepare the case and so forth they will also have to find the necessary funds to pay their own legal expenses and potentially make provision for those of the Respondent.

Until such time as NGO’s become familiar with the procedure, which may take many years, it seems unlikely that they will be able to avail themselves of Judicial Review at all if the time limit is imposed. In short, the reforms of the widening of access will be rendered stillborn by the deadline. The three month deadline significantly reduces access to justice without any obvious justification.   It is pro-Government and anti-Applicant.

Simple Procedure in the Sheriff Court

We welcome the introduction of Simple Procedure for all claims up to £5,000.    It makes sense to have one procedure rather than the current two.   We do however share the Law Society of Scotland’s concern about the curious provision in terms of Section 77 (4)(a) to the effect that in certain cases an award of expenses may be made notwithstanding the general rule that no award should be made. The circumstances to which we refer are where the defender had not stated a defence, or having stated a defence, has not proceeded with it. In effect this provision makes negotiation more difficult.    Th

The rule prejudices Pursuers who may submit a defence and then proceed to change the position upon receipt of legal advice. Currently there is much publicity on small claims indicating that no expenses are awarded: this obscure rule has caused problems for vulnerable people and the repetition to this provision would not seem advisable.

Simple Procedure/Defended Eviction & Specialist Sheriffs

We note that it is intended that the Sheriff may have an inquisitorial role in the Simple Procedure.   Whilst such a role does not in any way, in an important matter, reduce or alter the need for legal representation, it is nonetheless a helpful proposal. We would however suggest that if an inquisitorial role is to be taken seriously a degree of specialisation by Summary Sheriffs will be necessary. We would suggest that it seems unlikely that a Summary Sheriff will be sufficiently well briefed to deal with the whole gambit of Simple Procedure cases on an inquisitorial basis as well as other matters and criminal law. We would welcome a degree of specialisation as well as, as much separation of criminal and civil matters as is reasonably practicable.

Specialist Sheriffs generally

In our view, there is much to be said for Specialist Sheriff’s, in addition to the above, in the fields of  adults with incapacity and children’s hearing referrals.

The Privative Limit for the Sheriff Court

We support the many submissions that we have read to the effect that the proposed privative limit of the Sheriff Court of £150,000 is excessive. In our view, it should be no more than £50,000 at the most. We have some difficulty in understanding why it is argued by some that the proposed very high limit of £150,000 is in the interest of consumers.   The current arrangements are to the advantage of consumers/Pursuers who can choose the Court that can suits them best.

We appreciate that Defenders may object to  an action being raised in the Court of Session with the necessary instruction of Counsel and so forth where the value is low.   Our understanding is that the Judges themselves attempt to control this using orders regarding expenses. If however, more control is desired, as above indicated, we would propose a limit of £50,000.   We make this comment however in the context that, generally, the proposed change whether £50,000 or £150,000 is to the advantage of Defenders, not consumers. We would be concerned that the abrupt introduction of £150,000 Sheriff Court jurisdiction may have a range unintended and unascertainable consequences.

Conclusion We support much of what is contained within the Bill.   The introduction of Summary Sheriffs, more systematic provision for Specialist Sheriffs and the introduction of Simple Procedure all seem worthwhile reforms. We are concerned about the possible consequences the introduction of the Privative  Jurisdiction of the Sheriff Court of £150,000 may have and thoroughly disagree with the three month  deadline for Judicial Review.




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