Modern Laws for a Modern Scotland: A Report on Civil Justice in

Modern Laws for a Modern ScotlandA Report on Civil Justice in Scotland

w w w . s c o t l a n d . g o v . u k

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Published by the Scottish Executive, February, 2007

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Scotland’s Civil Justice Report iii

Foreword by the Minister for Justice 1

Our Vision for Civil Law and Civil Justice 3

Civil Law – Clear Rights and Responsibilities for Today’s World 7

Civil Justice in the 21st Century 13

Civil Justice – Access to Advice, Representation and Mediation 21

Civil Justice – Streamlined Civil Procedures 29

contents

iv Scotland’s Civil Justice Report

Scotland’s Civil Justice Report 1

The civil law underpins virtually every aspect of ourdaily lives – in our personal relationships withinfamilies, as neighbours and members ofcommunities, in our work whether as employees orrunning a business, and at home or in our leisuretime as shoppers and consumers.

We need modern laws for a modern Scotland. Ourlaws must be suitable for the way we live now.They must be clear, fair and understandable. Theymust provide accessible ways to sort outproblems, protect rights and resolve disputes ifthings go wrong.

Since devolution, we have reviewed and updatedmany aspects of our civil law and civil justicesystem. This includes a major modernisationprogramme in property law, new legalarrangements for the enforcement of legalobligations and to help debtors, new lawsbenefiting adults with incapacity and significantchanges in family law. The Executive will continueto bring forward reforms in the civil law whererequired. But we now believe the time is right toconcentrate on reviewing and modernising thedelivery of civil justice in Scotland.

We have agreed with Scotland’s senior judiciarythat a major review of the civil courts is needed, toensure that their structure, procedures and workingmethods promote access to justice and early,proportionate resolution of disputes, as well asmaking the best use of resources. I am delightedthat the Lord Justice Clerk, the Rt Hon Lord Gill,has agreed to lead that review. Alongside the workof his team, we recognise that there is work to bedone to improve access to legal information,advice, and representation where necessary, andto raise awareness of mediation and other forms ofdispute resolution.

This document sets out our vision for civil law andcivil justice in 21st century Scotland. It describesthe principles by which we believe civil justiceshould operate, mindful of the need to providevalue for money and deliver services as efficientlyas possible. It also identifies areas where webelieve change and improvement are needed.

We believe that out-dated ideas and vestedinterests should be challenged and new ideas andinnovations which will better serve the publicencouraged. Everyone who has an interest in thedelivery of civil justice services needs to work inpartnership to find the right solutions to theproblems we have identified. There is a particularneed to work with members of the public, to listento their concerns and hear their views about whatchanges are needed. We are confident that byworking together we will improve our civil justicesystem for the benefit of all.

Cathy Jamieson, MSPMinister for Justice

Justice is at the heart of a peaceful, prosperous society. For most of us, most of the time,the legal framework that surrounds us and supports our daily lives is something that wetake for granted. But the law and the legal system provide the framework of rights,responsibilities and rules that help individuals, families, communities and businesses liveand work together in harmony.

foreword by the minister for justice

2 Scotland’s Civil Justice Report

Civil law is the law that regulates the rights and responsibilities of individualsor legal persons between one another and which governs the rights andresponsibilities of government and the state. It includes private law areas suchas family law, contract, reparation, inheritance and property law, and public oradministrative law areas like education, health, planning, immigration, socialsecurity, and tax. The Scottish Parliament can legislate in most areas ofScottish private law, but much public law is reserved to the WestminsterParliament. The Scottish courts deal with cases in all areas of both Scottishand UK law.

Civil justice means the services and mechanisms that:• provide information and advice about civil law;• help to resolve problems and disputes about civil law matters; and• enforce and protect civil law rights and responsibilities when necessary.

Services cover a broad spectrum, from general advice providers such asCitizens Advice Bureaux, through specialist advisers on particular issues suchas welfare benefits or immigration, to a variety of professions and disciplinesincluding lawyers, arbiters, and mediators.

Mechanisms for resolving disputes range from negotiation-based processessuch as mediation and conciliation, through more formal processes involvingthird-party decision-makers, such as arbitration or adjudication, to formaljudicial processes in the civil courts and tribunals.


This report aims to set out the Executive’s vision for civil law and civil justice inScotland in the 21st century.

our vision for civil law and civil justice

1OVERVIEW

1.1 The civil law and civil justice exist to supportand regulate an enormous variety of types ofhuman behaviour and relationships.Individual citizens, families, businesses,public bodies and government institutionsare all affected by the civil law in the waythey go about their daily lives or carry ontheir lawful activities. Within and betweeneach of these groups, there is a huge rangeof different types of relationship or disputethat could arise, all needing the civil justicesystem to deliver an appropriate way ofsorting out the problem or, if it cannot beresolved by agreement, determining andenforcing legal rights and responsibilities.

OUR ASPIRATIONS

1.2 We hope this report will allow the reader tosee the “big picture” for civil law and civiljustice in Scotland; as the paragraph aboveshows, this is a large canvas, and it is notalways easy to see how the various parts ofthe picture relate to one another. Focussingon the detail of one part can mean that welose sight of the overall effect. The reportshows how the great variety of projects thatwe are currently engaged on fit together intoa coherent whole. Above all, it aims to helpthe people of Scotland to have a clearpicture of our objectives and the principleswhich we believe should apply to decisionsabout future reforms.

1.3 We want everyone to have an understandingof the importance of the civil law in their dailylives, to have access to the advice andsupport they need to make the right choicesabout the legal matters that affect them, andto be confident that our civil justice serviceswill help them to sort out problems whenthey arise. We also want to make sure thatwe make the best possible use of theresources available, to provide services thatpeople will value and trust, and that deliveroutcomes which actually resolve problems,helping people get on with their lives andsupporting business and enterprise. Thatmeans thinking very carefully about thedifferent ways in which we apply the moneywe spend on providing information, adviceand assistance, the way we use our courtbuildings and other facilities, and the way weuse the time and expertise of our judges andcourt staff.

1.4 We are clear about these aspirations. It isalso clear that there is still much to be doneto realise them fully. This document puts incontext the work that has already been doneand sets out the broad direction which webelieve should be followed. The generalprinciples set out in Chapter 3 are intendedto provide the policy framework within whichwe see the review of the civil courtsoperating, as well as a framework for otherfuture reforms in civil justice.


1.5 This paper is not intended as a consultationdocument, but we hope it will raise publicawareness of the importance of civil justiceand will be very happy if it stimulatesdiscussion. We hope that this will be the startof a broad-ranging public debate, which maywell stretch over a number of years, aboutwhat is wanted from our civil justice systemand how best to achieve it. While this papersets out what we currently see as the directionof travel, we recognise that it is for the newAdministration to be elected in May to takeforward this work, consistent with its ownpriorities. Any Administration must always beopen to new ideas and willing to re-assessand re-focus its priorities to respond toevents and changes in circumstances.

1.6 This report provides:

• In Chapter 2, a description of the reformsin civil law that the Executive has achievedsince devolution and an indication ofpossible future areas of reform;

• In Chapter 3, a discussion of key issuesinvolved in the delivery of civil justiceservices and an explanation of the policyprinciples that we consider shouldunderpin future civil justice reform, as wellas our response to the report by theScottish Consumer Council’s Civil JusticeAdvisory Group;1 and

• In Chapters 4 and 5, a description of civiljustice reform work achieved, currently inprogress or already announced.

BROADER CONTEXT

1.7 The paper concentrates on initiativesaffecting the justice system. It is, however,important to bear in mind the broadercontext in which these initiatives take place.Justice system projects have close links withpolicies on:

• care, protection and education ofchildren, and on adoption and fosteringand family relationship support;

• anti-social behaviour, social inclusion,housing and planning law;

• protecting the environment and promotingenvironmental justice;

• resolution of disputes regarding theprovision of health services; and

• promoting enterprise and regulating theway businesses operate.

1.8 Aspects of civil law and civil justice reformare also high on the agenda of the UKGovernment. Many of the UK Government’sinitiatives, while primarily affecting areas oflaw reserved to the UK Parliament, haveimplications for civil justice systems inScotland. They may require new courtprocedures to be put in place, or they mayinvolve setting up new advice andinformation services, or the creation of a newtribunal that may have to makedeterminations involving Scots law. Reformsto areas of law such as consumer credit,which is reserved, may have an impact onthe types and numbers of debt cases

1 Scottish Consumer Council The Civil Justice System in Scotland – A case for review? November 2005http://www.scotconsumer.org.uk/accessjustice/documents/rp11civil_000.pdf


coming to court; and changes inimmigration law may affect the numbers ofjudicial review cases being dealt with by theCourt of Session. Developments such asthese have to be factored in when we areconsidering possible changes to civil justiceservices in Scotland.

1.9 Similarly at EU level, there are changes in thepipeline which will have a significant impacton civil justice in Scotland. In an increasinglyglobal society, it is important that disputescan be effectively resolved acrossinternational borders and EU initiatives suchas those relating to small claims,enforcement, and mediation will affect theway our courts and other civil justice serviceproviders operate.

1.10 All this means that justice policy can neverbe developed in isolation. We need realconsultation and engagement with the hugeand diverse range of stakeholders who havean interest in the way the justice systemoperates. All the policies described in thisdocument have resulted from suchconsultation and discussion, often facilitatedby the new legislative procedures that ourown Parliament has brought. Work needs tocontinue to ensure that the public andeveryone who is interested in the delivery ofjustice are fully involved in the policydevelopment process.

1.11 Policy development must also be informedby research and analysis and there iscurrently a wide programme of research incivil law and civil justice, including: the family,children and relationships (including a largeprogramme of work on child contact); adultswith incapacity; information, advice andrepresentation; and alternative disputeresolution and methods of delivering civiljustice. Planned research involves projects tomonitor and evaluate the effectiveness ofnew and existing policies, including the newFamily Law Act and new legislation onbankruptcy and diligence. Other research willcontribute to the formulation of polices by, forexample, exploring initiatives such as in-courtadvice pilots and mediation pilots. A key taskfor the civil courts review will be to exploreways in which outcomes in civil justice canbe measured.



Modern laws for a modern Scotland means fair laws and systems that deliver:• clear rights and responsibilities for all Scotland’s citizens; and• access to justice, by means of

- information, advice and support to help people avoid problems in thefirst place, and to get the right advice and help if they do have aproblem;

- accessible ways of helping people sort out problems when they arise,short of going to a court or a tribunal; and

- streamlined procedures for determining, protecting and enforcingrights for those cases that need to go to a court or tribunal.



2.1 The Scottish Parliament can legislate on verymany areas of civil law, stretching from familylaw, property law and inheritance to publicsafety, economic development, educationand health. One of the major benefits of theScottish Parliament is the opportunity itprovides to keep Scots law – the distinctivebody of law applying in Scotland – up todate and in good repair. A core function ofthe law is to regulate relationships, whetherthese arise in a personal, community orbusiness context: to do this effectively it mustevolve as our society evolves and as ourvalues develop.

2.2 The law is a powerful instrument foradvancing public policy. It is not the only, oralways the best, instrument but it can be apotent force for change, establishing newrights or duties and helping to modifyexpectations and attitudes. During thepresent session of Parliament, we have

chosen to give a strong focus to reform ofvarious aspects of family law where the lawneeded updating to reflect the way we livenow and to provide fair remedies, andprotection for the vulnerable, when things gowrong. There are solid achievements in thatfield including the creation of a new legalstatus for civil partners; a package ofimportant changes to the law on marriage,divorce, and the rights of cohabitants; andchild protection measures. These lawreforms provide essential underpinning forour social policy objectives to promote stablefamilies and in particular to give children thebest start in life.

2.3 Of course, we have done much more thanreform family law, as the followingparagraphs set out. Across all our civil lawreform efforts, the Executive has a number ofkey aims:

The civil law affects virtually every aspect of our daily lives as we raise our families,earn our living, look after our property, protect our environment and community, andsettle our disputes.

civil law – clear rights and responsibilities for today’s world

2

Civil law reform – key aims• to keep the law up to date and relevant to the way we live now;• to give priority to measures which protect the vulnerable in our society; and• to harness the power of the law to our social and economic agenda.

WHAT WE HAVE DONE

2.4 Since devolution, we have reformed the civillaw in several significant areas.

2.5 The Adults with Incapacity (Scotland)Act 2000 introduced new ways to managethe financial affairs and safeguard thewelfare of people who are unable to makesome or all decisions for themselves. Ithelps people plan for their own future incase they are ever unable to manage theirown affairs, and it provides a number ofways in which carers and others canmanage the affairs of someone who is notable to do so personally.

2.6 We have undertaken a co-ordinatedprogramme of property law reform, based onproposals by the Scottish Law Commission.The Abolition of Feudal Tenure etc.(Scotland) Act 2000 abolished the feudalsystem of land tenure in Scotland andreplaced it with a system of outrightownership of land. The Title Conditions(Scotland) Act 2003 modernised andclarified the law on real burdens and set outa framework of rules for the imposition ofconditions in the system of outrightownership of land, complementing feudalabolition. The Tenements (Scotland) Act2004 completed the programme byreforming the law of the tenement.

2.7 Two pieces of legislation passed by theWestminster Parliament but which weresupported by the Executive and the ScottishParliament recognised changes in publicattitudes towards gay and lesbian couplesand transsexual people. The CivilPartnership Act 2004 creates a new formof legal relationship for same-sex coupleswho wish their commitment to one another tobe recognised in law. The GenderRecognition Act 2004 introduced amechanism whereby transsexual peoplehave the opportunity to seek legalrecognition in their acquired gender.

2.8 The Family Law (Scotland) Act 2006modernises several aspects of family law;the legislative changes, combined with theinformation initiatives outlined in Chapter 4,reinforce the fundamental principle thatchildren’s welfare has to be at the heart offamily law.

WHAT WE ARE DOING

2.9 Recognition of the rights set out in theEuropean Convention on Human Rights nowunderpins the whole of our legal system.The Scottish Commission for HumanRights Act 2006 provides for the creation ofa body with primarily an education andawareness-raising role, working to dispelignorance and misunderstanding about thesubstance of human rights law and how itaffects people’s daily lives. The newCommission will be accountable to theScottish Parliament and we will work with theParliament and other relevant interests tohelp set it up.



2.10 The Adults with Incapacity (Scotland) Act2000 has already achieved a great deal interms of facilitating and improving themanagement of the personal and financialaffairs of people with some degree ofincapacity, while ensuring that they retain asmuch autonomy as they can. No piece oflegislation is perfect, however, andexperience since the Act was passed hasshown that there are some provisions in itthat would benefit from being looked atagain. The legislation to take forward someof the recommendations of the Scottish LawCommission’s report on Vulnerable Adults –the Adult Support and Protection(Scotland) Bill – gives us the opportunity tomake the changes needed. The fact that weare able to do this within a short time ofidentifying the need for changesdemonstrates once again the benefit ofScotland having its own Parliament.

2.11 The law dealing with insolvency is beingrevised to improve the procedures relating tobankruptcy and diligence, and the legislationwill also enable reform of protected trustdeeds. These allow a person who isinsolvent to voluntarily hand over his or herassets to an independent professionalperson to manage for the benefit ofcreditors, without a full sequestration. Ouraim is to make the system more transparentand ensure that there is a reasonablebalance between the benefits the procedureoffers to debtors and the return that it makesavailable to creditors.

2.12 In September 2006 we introduced in theScottish Parliament the Rights of Relativesto Damages (Mesothelioma) (Scotland)Bill to address certain issues around claimsfornon-financial damages by the families ofvictims of mesothelioma. We have also usedthe Compensation Act 2006, following aLegislative Consent Motion in the ScottishParliament, to reverse for Scotland the Houseof Lords judgment in the Barker2 case.Alongside this, and to help inform future policy,we have asked the Scottish Law Commissionto examine in detail the current law relating todamages recoverable in respect of deathscaused by personal injury and damagesrecoverable by relatives of an injured person.

2.13 We are working with the UK Government onreforms to company law and floatingcharges, as they affect Scots law, so that thebenefits to business in the Companies Act2006 and the Bankruptcy and Diligenceetc. (Scotland) Act 2007 will be available tobusinesses operating in Scotland.

2.14 We are also involved in a number of currentEuropean initiatives. These include projects toresolve conflicts between different legalsystems in international civil cases, forexample the Rome II project which seeks toestablish rules, and greater legal certainty,on how cross-border disputes involvingnon-contractual obligations are resolved.It is important that we continue to contributeto these to ensure that the outcomes workeffectively in relation to Scots law, and helppeople and businesses in Scotland takeadvantage of opportunities to travel, work anddo business in the international dimension.


2 Barker v. Corus (UK) plc and others [2006] UKHL 20, 3 May 2006


WHAT WE WILL DO

2.15 The majority of the recent reforms we havemade in civil law have been based onreports and recommendations made by theScottish Law Commission, and it is likelythat this will also be the case in the future.The Commission’s 7th programme of lawreform, aimed at keeping the law in goodrepair, commenced on 1 January 2005 andcovers both criminal and civil projects. Onthe civil side, it builds on the recent reformsto property law, looking now at landregistration. It is undertaking acomprehensive review of trust law, andexamining the law relating to judicialfactors. New projects in the currentprogramme include a review of the law ofsuccession (inheritance); an examinationof the law relating to assignation of andsecurity over intangible assets, such asinsurance policies, or book debts, which willhave important implications for Scottishbusinesses; and a look at the law affectingunincorporated associations, such assports clubs and residents’ associations. Italso includes some specific items whichhave been prompted by requests for advicefrom the Executive itself, such as the currentreviews of the law on relatives’ claims fordamages (as mentioned above). It haspublished its reports on the law aboutinterest on debt and damages, leaseholdtenure and of the law of limitation ofactions as it affects personal injurycases.

2.16 The Executive itself will also be undertaking avariety of research and evaluation projects inareas of civil law, some of which mayindicate areas which need further review andreform. Planned work includes monitoringand evaluation of recent legislation, such asthe changes introduced by the Family Law(Scotland) Act 2006.

2.17 Priorities for further civil law reform will beinformed by the reports the Commissionmakes, by the Executive’s own research, andby its assessment of what changes wouldbring about the most benefit to the people ofScotland. We are completing the legislativeprogramme for the remainder of the currentsession of the Scottish Parliament, andthe decision on priorities following theelection is of course one for the incomingAdministration. Some of the items mentionedabove are, however, likely to result in futureconsultation and legislative proposals. It isvital in developing our future law reformagenda that we attend to the problems thatpeople experience in their daily lives; and wewill work hard, in concert with the Parliament,to secure early solutions to these.



Some projects of the Scottish Law Commission in their current programmeof work• Leasehold tenure – the Commission published its report on 21 December 2006

on updating the law on long leases taking account of feudal reform. Thatrepresents the last piece of the jigsaw in abolishing the feudal system of landtenure in Scotland.

• Succession – the Commission is taking a comprehensive look at the law onwho inherits someone’s property when they die, to bring it up to date withcurrent social attitudes and new family structures.



civil justice in the 21st century

3.1 As Chapter 1 explained, civil justice covers arange of services, mechanisms andinstitutions. They share a common aim toprovide people, businesses and publicbodies with ways to resolve legal problemsand to sort out legal disputes in a fair andjust way, and taken together, they can besaid to form the civil justice “system”.

3.2 Since devolution, the Executive has drivenforward a radical programme of reform to thecriminal justice system, which has to someextent meant that reforms to civil justice,while still continuing, have had a lowerprofile. Over the last few years, however, theExecutive has become increasinglyconvinced of the need to direct moreattention at the civil side of the justicesystem. This has been driven by a number offactors. A growing awareness of publicdissatisfaction with aspects of civil justice, asbrought out in research,3 the emergence ofinterest in mediation and other new methodsof dispute resolution,4 and the clear successof new procedures in some parts of the courtsystem5, showing the benefits of new waysof working, have all suggested that there areopportunities to improve the delivery of civiljustice for the people of Scotland.

PRINCIPLES OF REFORM

3.3 We need to be clear about the principleswhich will underpin future reform. There aretwo key principles that we believe shouldinform all proposals for change in civil justice:proportionality and value for money.

PROPORTIONALITY

3.4 Like any system, the civil justice system hasto balance a number of different demandsupon its processes and resources. The civiljustice system deals with problems anddisputes which concern civil legal rights orresponsibilities; typically there will be doubtor disagreement as to which of a number ofcompeting legal rights and interests should,in law, prevail. The challenge for the civiljustice system is to provide mechanismswhich will enable problems or disputes toreach outcomes which are correct in law,which strike the appropriate balancebetween competing legal rights, or which, ifthey involve a compromise of legal rights, doso with the informed agreement of the partyor parties involved. It also has to try toprovide such outcomes within a reasonabletime, and at a reasonable cost to the partiesinvolved and to the public purse.

This Chapter outlines the broad policy principles that we believe should underpin civiljustice reform and explains the background to our decision to embark on a majorreview of our civil courts.

3

3 Hazel Genn & Alan Paterson Paths to Justice Scotland: what people in Scotland do and think about going to law Hart Publishing, 2001;Scottish Executive Improving Family law in Scotland: Analysis of written consultation responses October 2004http://www.scotland.gov.uk/Publications/2004/10/20057/44653

4 The establishment of the Scottish Mediation Network’s office in 2002 has provided a focus for mediators and the Network is helping tobring mediation into the public consciousness as an option for dealing with disputes. http://www.scottishmediation.org.uk

5 See, for example, the research into the operation of the Commercial Court procedure in Glasgow Sheriff Court, by Elaine Samuel,Scottish Executive Social Research 2005 http://www.scotland.gov.uk/Publications/2005/10/28163103/31038


3.5 What is reasonable in terms of time and costwill vary according to the circumstances ofthe case. The test is proportionality – whetherthe level of legal and, where appropriate,judicial resource applied to an issue isproportionate to the importance and value ofthe issue to the parties and to society ingeneral. In a child abduction case forexample, or where a decision is urgentlyneeded about a medical intervention, timemay be of the essence, but it will also beextremely important that the outcome iscorrect in law; the need for difficult andcomplex legal decisions to be taken within ashort timescale will mean that a high level oflegal and judicial input is needed quickly;containing costs may therefore be difficult,and should in any event, many would argue,be a secondary consideration in such a case.

3.6 A case involving a novel point of law that willhave an impact on a number of other caseswill also merit time and care being expendedon it, even where the monetary value of thecase is small. In many other cases, however,where the value of the issue in dispute issmall and there are no complex legal issues,the proportionality principle will mean that thepriority should be to ensure that a fairdetermination is reached quickly and at areasonable cost.

3.7 To a large extent the proportionality principleis already incorporated into the civil legal aidscheme, in the form of the “reasonableness”requirement which has to be satisfied beforepublic funding is provided for a court case.The same is not, however, true when wecome to look at the allocation and use ofother public resources in the form of judicialand court time. At the moment it is all tooeasy for a party who has the desire andresources to do so, to pursue (or defend) acase for an indefinite period, on the basis oflittle or no valid legal argument, even wherethe sums involved are insignificant, causingexpense to his or her opponent and usingup valuable public resources in the form ofcourt time.

3.8 We believe that this needs to change. Wealso believe that the court itself is best placedto make the judgment about how a caseshould be initiated and presented to it, whatprocesses it should follow, and how much ofthe court’s time and other resources shouldbe allocated to it. The civil courts review willhave the task of identifying how best toreform court processes so that our judgeshave the tools to ensure that cases are dealtwith in ways which are proportionate to theirmonetary value and the importance andcomplexity of the issues raised.



VALUE FOR MONEY

3.9 Civil justice is a public service. The public isentitled to expect that the services providedby the different parts of the civil justicesystem deliver value for money. They arealso entitled to expect that they meetreasonable expectations based on other,more difficult to measure values, such astreating people fairly and with respect, andbeing accessible. We want to try anddevelop indicators which will help us toassess and compare the extent to whichdifferent types of service within the civiljustice system provide value and efficiency,in terms of their monetary cost both to thepublic purse and to the people andbusinesses using them, and in terms of howwell they meet public expectations. This willbe a complex task, involving consideringwhat are desirable outcomes and reasonableexpectations.

3.10 There are choices to be made about prioritiesfor investing in the civil justice system. One ofthe key considerations is where the balanceshould lie as between supporting the

provision of advice and early resolutionservices, and investing in formal structuressuch as courts. It is not a question ofpreferring one to the other – both are needed.But we think it makes sense to pursuepolicies that work towards the early resolutionof disputes, preferably by negotiationbetween the parties involved and withoutresort to the courts. So one of the factors thatwe believe should be incorporated in anyassessment of value for money is the extentto which a service or a process helps orhinders the resolution of a dispute.

3.11 We also of course fully recognise that somedisputes can, or should, only be resolved bythe determination of a court, or by theprospect of such a determination. We see noreason why the same principle should notapply to those cases. Where court processesare necessary, we believe they should be asswift and straightforward as possible, andshould work in ways which promote earlyclarification of the points at issue and preventthe escalation of expense.

Key principles for civil justice reform• Proportionality – systems and processes that are proportionate to the

importance, complexity and monetary value of the issues involved; and• Value for money – making sure civil justice services are efficient, meet

reasonable public expectations, and promote early resolution of disputes.


SCOTTISH CONSUMER COUNCILCIVIL JUSTICE ADVISORY GROUP

3.12 These principles give us a benchmark againstwhich to judge proposals for future reform.The next stage is to identify the scope forreform. A review of civil justice with too broad-ranging a remit may risk becoming unwieldyto manage and unfocussed in its work. Itcould also end up duplicating orcontradicting reforms already under way. Webelieve that any review needs to focus on theareas most in need of change, and to have aremit which sets out clear parameters withinwhich it is to work, and clear objectives whichcan be fulfilled within a reasonable time. It isalso vital that such a review commands wide-spread confidence and support.

3.13 We were therefore very pleased to supportthe initiative of the Scottish ConsumerCouncil, under the auspices of the NuffieldFoundation, to hold a series of seminars toexamine the case for and against a review ofcivil justice in Scotland, and to bring outsuggestions for change. Under the energeticand experienced leadership of the Rt HonLord Coulsfield, the SCC’s advisory group,which included representatives of all the keystakeholders, produced a detailed andthoughtful report in November 2005. Thereport called on the Executive to establish acivil justice review and identified a number ofkey issues which it considered should be themain focus of that review. These were:

• The disproportionate cost of litigation,particularly in cases of lower financialvalue;

• Disruption to civil cases because of thepriority given to criminal cases in the courtsystem;

• The potential benefits of increasedspecialisation among courts and judges;

• The possibility of increasing the role of thecourts in case management, which mayreduce time taken and costs;

• Payment arrangements for lawyersincluding fixed fees;

• Increased powers to ensure courtjudgments are observed.

OUR RESPONSE TO THE REPORT

3.14 The Report has been extremely helpful inhighlighting the issues and stimulatingdebate on civil justice and we agree with thegeneral thrust of its conclusions. We wouldidentify the first four of the key issues asbeing the ones where we see the mosturgent need for review.

Disproportionate costs3.15 The identification of the disproportionate

costs of litigation as a major issue is verymuch in line with our own thinking. Therelatively low level of the small claims limit –currently £750 – means that the procedure isnow not available for use for many consumerclaims. This undermines the purpose forwhich the procedure was originally intended



and means increased costs for many courtusers who have to raise actions under themore complex and time consuming summarycause or ordinary cause procedures. The lowthreshold for raising actions in the Court ofSession – currently £1500 – is also nowquestionable. It is clearly time for a closelook at how straightforward cases ofrelatively low value should be handled, aswell as a detailed examination of the factorsthat merit cases being brought before thehigher courts.

Specialisation and balancing the demands ofcivil and criminal business3.16 In recent years there has been an increasing

tendency to look to specialised courts ortribunals, or specialist judges, as a way oftackling some of the perceived failings withinthe current system. This has been evidencedby calls for more judges specialising in areassuch as family law,6 by proposals for housingtribunals7 and by the setting up of newtribunals to deal with specific types of case,such as the Mental Health Tribunal, and theAdditional Support Needs Tribunals.

3.17 It is argued by those promoting suchspecialisation that a tribunal is likely to bemore accessible and to operate in a more“user-friendly” way than the ordinary courts.The special knowledge and experience of themembers of a tribunal, or of a specialistjudge, are seen as ensuring that they will

more readily understand the issues comingbefore them and so the quality of thedecisions they make will be better thanwould be made by people without thatknowledge and experience.

3.18 The argument about accessibility anduser-friendliness is a strong one, but it doesnot necessarily require a whole new structureto achieve these – changing the way theexisting processes work so that our ordinarycourts become less intimidating and moreaccessible may be an equally good, orbetter, way of achieving the desired result.

3.19 As regards specialist courts, we agree that thedevelopment of a body of judges with specialknowledge and experience in particular areasmay well enhance our civil justice system. Wealso agree that there is a need to look at howthe courts balance the pressures of criminaland civil business, and examine whether thereshould be more separation. We must not,however, lose sight of the fact that Scotland is arelatively small country with a mix of urban andrural courts, and a limited pool of judges. Thecurrent system where the local sheriff courts areable to deal with the whole range of businesshas distinct advantages as well asdisadvantages. The issues surrounding how weachieve an appropriate balance betweengreater specialisation and local delivery clearlymerit detailed examination.

6 See for example, the Report of the Justice 1 Committee on Stage 1 of the Family Law (Scotland) Bill, paragraph 139.http://www.scottish.parliament.uk/business/committees/justice1/reports-05/j1r05-08-vol01-01.htm#structure

7 See for example Derek O’Carroll & Susie Scott A housing tribunal for Scotland? Improving rented housing dispute resolution,Chartered Institute of Housing in Scotland, March 2004


Case management3.20 We are very much in sympathy with the

suggestion that the potential benefits of casemanagement should be examined in depth. Wehave already seen the value of casemanagement in the High Court reforms and inthe Commercial court procedures in the sheriffcourt, and believe that there are further benefitsthat could be attained. We would agree thatthere are a number of possible options forchanges to existing procedures, whereby thecourt is given greater control over the waycases are dealt with, that a review might usefullyconsider. These could include the possibility ofa procedure to deal with multi-party actions orto group similar cases together, greater powersto control the amount and nature of evidencepresented and whether this is done in writtensubmissions or by oral argument, and powersto refer disputes to mediation or another form ofalternative dispute resolution.

3.21 As regards the other two issues highlightedby the report, i.e. payment arrangements forlawyers, and the enforcement of courtjudgments, we agree that these certainlymerit further examination.

Payment arrangements for lawyers3.22 Lawyers, like any other profession, are

entitled to seek fair remuneration for theirservices, which are largely provided on anopen market basis. We would be happy tosee the growth of fee arrangements whichimprove the transparency and predictabilityof legal costs and increase choice forconsumers, and will welcome any movesmade by the profession to control costs. TheReport of the Research Working Group onthe Legal Services Market in Scotland,

published in May 2006, considers a numberof issues in relation to payment for lawyers.We and the relevant stakeholders are nowconsidering these further. The Executive’sremit to intervene directly in paymentarrangements is, however, limited to thoseareas where payments are funded from thepublic purse, or ancillary areas where there isa public role to be performed, such as thetaxation of costs by the auditors of court.

Enforcement of court judgments3.23 We have already undertaken an overhaul of

our system of court enforcement in theBankruptcy and Diligence etc. (Scotland)Act 2007. Reform will strike a better balancebetween the interests of debtors andcreditors, and provide for independent reviewof the effectiveness of the reformed systemby the Scottish Civil EnforcementCommission to be set up under that Act.Decisions on the operational date for theCommission will be taken by the incomingAdministration. We would therefore not ruleout new reforms that will further improve theeffectiveness of the system.

THE FUTURE DIRECTION OF CIVILJUSTICE REFORM

3.24 Following the publication of the ConsumerCouncil’s report, we held a number ofmeetings with a broad range of stakeholderinterests to discuss its conclusions and helpus to reach a decision on what our nextsteps should be. We also brought theissues before the Scottish Parliament in abroad-ranging debate on Civil JusticeReform on 20 April 2006. The report, themeetings and the debate have all helped us



to re-assess our priorities for future civiljustice reform and to identify where there aregaps which need to be filled. They revealeda clear consensus on two main issues:

• It is vital that people have access to goodquality information and advice, and insome cases representation, particularly atan early stage in a dispute in order to tryand prevent problems escalating andpositions becoming entrenched;

• The civil courts do not, on the whole,currently provide processes which help toresolve disputes at the earliest possiblestage, or at a proportionate economiccost. In fact current court process areable to deal fairly quickly andeconomically with undefended cases,especially low value debt cases in thesheriff court, but there is a widely heldview that disproportionate costs andunacceptable delay are an inevitableconsequence when a case is defended.

3.25 We believe the priority for civil justice in theforeseeable future should be to addressthese issues. Chapters 4 and 5 explain whathas already been done and what is currentlyin progress or planned. The detaileddevelopment of plans for long term reformswill be for a future Administration to decide.

Information and advice3.26 We are already doing a great deal to improve

access to advice and information and willcontinue to pursue the programme of workalready under way, as set out in Chapter 4.We will increase access to good quality legalinformation, advice and representation,including publicly funded legal assistance,and continue to support and raise awarenessof mediation and other processes thatpromote early dispute resolution.

The civil courts3.27 Chapter 5 sets out a number of recent and

current initiatives aimed at improving courtprocesses. We have, however, come to theconclusion that there is a need for anin-depth look at the structure and proceduresof our civil courts, with a remit to producerecommendations for changes to achieve asystem which deals with cases justly, within areasonable time and at a reasonable cost,i.e. which provides proportionate disputeresolution. We believe that such a reviewneeds to be led by a senior member of ourjudiciary and are delighted that Lord Gill hasagreed to take on this extremely importanttask. We envisage that the remit will bebroad enough to encompass an examinationof the issues raised by the four conclusionsof the Scottish Consumer Council reportwhich we discuss at paragraphs 3.15 to 3.20above.


Modernising civil justice – our priorities• we will continue our work to increase access to good quality legalinformation, advice and representation in civil matters, including publiclyfunded legal assistance; and

• we will establish a review of our civil courts under the leadership ofLord Gill.


civil justice – access to advice, representation and mediation

4.1 At its best, the right information and advice,made available at the right time, can helpensure that people make the right choiceswhen making decisions which have legalconsequences for them. It can help a youngperson leaving home understand whatresponsibilities they are taking on when theysign a lease; help a parent understand whatthe consequences are of registering the birthof a child; help people manage their moneyand not take on debts they cannot repay; helpsomeone setting up in business decidewhether to trade in their own name or as alimited company; and help someone tosupport an elderly relative to manage theiraffairs. These are all common everydaysituations where, without the right informationand advice, it can be difficult to make the rightdecision.

4.2 Advice and information is also vital if thingsgo wrong or unexpected events happen.People need to know where to go for adviceand information, and to have confidence thatthe advice they receive will be appropriateand of good quality. Different problems needdifferent types of advice, and different levelsof intervention. Some situations may besorted out by simply getting informationabout a complaints system or anindustry-supported arbitration service.Sometimes a local Citizens’ Advice Bureau orWelfare Rights Office will be able to providethe advice needed. And sometimes theproblem will be best dealt with by a solicitor.

A range of advice and information servicesand providers is needed, and people need toknow where they are and how they can help.

4.3 Where some kind of process has to be gonethrough to resolve the situation, the majorityof people will want to ensure that theprocess is as quick and painless as possibleand that they can influence the outcome. Insome cases a court process will be required,for example, where the authority of the courtis required to recover property or obtainrecompense for injury, to prevent damagingor destructive behaviour, or to challenge theactions of a public authority. In manyinstances, however, negotiation-basedmethods of dispute resolution, such asmediation, can offer an alternative way ofreaching a conclusion in a dispute, or can atleast help to focus the key issues andpreserve a process of dialogue which mayavoid positions becoming too entrenched.

4.4 Representation or advocacy can be just asvital as advice and information. The law andthe legal system are complex, and althoughsome people may be happy to speak forthemselves in negotiating with the person onthe other side of a dispute, or to argue theirown case at a court or tribunal, many will not.It is therefore essential that people can haveaccess to good quality representation whenthey need it, at a price they can afford.

The importance of good quality, accessible advice and information about the law andthe legal system cannot be overstated.

4


Advice and information – key aims• ensuring people have access to good quality information and advice to

enable them to understand their rights and obligations and avoid problems;• when problems do arise, ensuring people have access to advice and, where

they need it, to representation, to prevent problems escalating and resolvethem as quickly as possible; and

• encouraging the use, where appropriate, of negotiation-based methods ofdispute resolution such as mediation.



WHAT WE HAVE DONE

4.5 In 2004 the Strategic Review of theDelivery of Legal Aid, Advice andInformation made recommendations toScottish Ministers and the Scottish Legal AidBoard. The review looked at the criteria forthe granting of legal aid and advice andassistance for both civil and criminal matters.It also asked some searching questionsabout the future role of the Scottish Legal AidBoard and whether there should be a newnational body to co-ordinate the delivery ofpublicly funded legal assistance. Aconsultation entitled “Advice for All:Publicly Funded Legal Assistance inScotland – the Way Forward” wassubsequently published in September 2005.The first phase of proposals from the reviewwas taken forward in the Legal Professionand Legal Aid (Scotland) Act 2007. Morewide-ranging changes, by way of newprimary legislation, regulatory changes andadministrative action are expected to bebrought forward in future months and years.

4.6 A strong, sound and independent legalprofession, in which the public hasconfidence, is one of the cornerstones of thejustice system. Our consultation on“Reforming Complaints Handling,Building Consumer Confidence –Regulation of the Legal Profession inScotland”, invited views on how best toaddress concerns about the way complaints

against the profession have been handled,and to improve public confidence in thesystem. The Legal Profession and Legal Aid(Scotland) Act 2007 contains measureswhich take account of views expressed bymembers of the public in response to theconsultation.

4.7 The first in-court advice project, set up inEdinburgh Sheriff Court in 1997, has provedto be a considerable success. Furtherin-court advice projects were established inAberdeen, Airdrie, Dundee, Hamilton andKilmarnock in 2002/03. An evaluationpublished in January 2006 has indicated thatthese services are a valuable resource whichwas particularly able to meet otherwiseunmet legal need for people involved in courtproceedings. We confirmed in January 2006that funding for the services would becontinued for a further 3 years to allowfurther evaluation and consideration of howsuch services should be developed.

4.8 We have for many years invested in anumber of national family relationshipsupport bodies and over the last 2 yearshave invested in moves by them to integratetheir services and project work, for clients’benefit. Alongside the legal reforms achievedby the Family Law (Scotland) Act 2006, wehave provided support for families intransition by producing the ParentingAgreement for Scotland and theGrandchildren’s Charter.


4.9 We have put in place a number of projectsaimed at increasing the availability ofinformation for people affected by debt. TheDebt Arrangement Scheme wasestablished in 2004 under the DebtArrangement and Attachment (Scotland)Act 2002 to provide assistance in setting upa managed environment in which people canrepay multiple debts over time, free from thethreat of enforcement action orsequestration. We provided £3 million eachyear from 2002/03 to 2006/07 to developmoney advice services and to support anincrease in the number of frontline moneyadvisers. In each of the years 2005/06 and2006/2007 we made a further £2 millionavailable to carry on that work and to meetthe demand for money advisers approved touse the Debt Arrangement Scheme.

4.10 The 2002 Act also made it a requirement thatcreditors supply debtors with a copy of theDebt Advice and Information package,consisting of the booklet “Dealing with Debt:Finding Your Feet”, and a leaflet about localMoney Advice services, before they can usethe diligence of attachment.

4.11 At the European level we are part of theEuropean Judicial Network in Civil andCommercial Matters. This provides contactpoints in all EU jurisdictions to allow officialsand organisations to obtain information quicklyabout civil justice systems in other countries. Italso promotes access to information for thegeneral public through the EU Commission’sEJN website.

WHAT WE ARE DOING

4.12 Our information initiative to support familylaw reform aims to improve the range ofinformation available for couples, families andchildren. It includes a new web portal,8 a pilotintegrated help-line and a new range of printedmaterials for couples and young people.Working closely with a small number of sheriffcourts, we will also pilot new approaches tochild contact in conflicted cases. And we haveinvested a further £300,000 during 2006/07in relationship counselling and mediation atlocal level.

4.13 The family law web portal is linked to the newadvicefinder problem-solving website,9

launched in May 2006. This aims to act as agateway to sources of information andadvice on the whole range of civil legalproblems that people may face, such asdebt, housing, employment, benefits, etc.

8 www.scotland.gov.uk/familylaw

9 http://www.infoscotland.com/advice



4.14 The Debt Arrangement Scheme is underreview and was amended to extend it toother diligences by the Bankruptcy andDiligence etc. (Scotland) Act 2007 and bychanges to administrative procedures by theAccountant in Bankruptcy. The Debt Adviceand Information package is also underreview.

4.15 The Bankruptcy and Diligence etc. (Scotland)Act paved the way for money advisers toprovide lay representation in court fordebtors, and the Scottish Civil EnforcementCommission will be given a specific functionof improving public knowledge andeducation as regards diligence andenforcement of decrees.

4.16 In the field of alternative dispute resolution, wehave a strong programme of work to promotequality control and good practice inmediation and to raise public awarenessabout it. Here we are working in partnershipwith the Scottish Mediation Network (SMN),which has been funded by the Executive todevelop a quality assurance frameworkacross all spheres of mediation. SMN is alsorunning awareness workshops andpresentations and the Executive supportedtheir mediation conference in September2006.

4.17 We are currently developing a strategy formediation research through the JusticeDepartment Analytical Services Division andaim to commission an evidence review ofmediation to guide this process.Simultaneously, a number of researchprojects have been undertaken or areunderway in relation to mediation. AnalyticalServices are currently working with SMN tobuild in a framework for evaluation. A surveyhas also been undertaken of both sheriffsand judges on awareness of, and attitudestowards, mediation, and an evaluation of theIn-Court Mediation Pilots is about to getunderway.

4.18 As well as continuing to support themediation service running alongside thein-court advice service in Edinburgh sheriffcourt, two new in-court mediation servicesare also being supported by the Executive,one in Glasgow and one in Aberdeen. Thesepilots will run for 2 years and have beendesigned to test different models of provisionto help inform decisions about futuresustainability of such services.

4.19 There is strong interest in mediation andother forms of alternative dispute resolutionat a European level and we are continuing tocontribute, in partnership with the UKGovernment, to the development of a draftEU directive on mediation.


4.20 The Legal Profession and Legal Aid(Scotland) Act 2007 will bring aboutsignificant improvements to, and increasepublic confidence in, the system for handlingcomplaints against the legal profession.It provides for the establishment of a ScottishLegal Complaints Commission (SLCC) whichwill handle consumer or service complaintsagainst the legal profession, as well asoverseeing the handling of discipline issuesby the legal professional bodies. The Actalso puts in place the first phase ofimprovements to legal aid and will pavethe way for the longer-term strategy by givingthe Scottish Legal Aid Board additionalpowers to fund new models of provision forpublicly funded legal assistance.

4.21 Alongside these primary legislative changes,we continue to monitor the operation ofthe civil legal aid regulations with a viewto updating and revising them in response tostakeholder responses in addition toinitiatives at a European, UK and ScottishExecutive level. These include making thenecessary amendments to support new courtand tribunal procedures. In addition, theScottish Legal Aid Board has started aproject to look at ways of simplifying civillegal assistance for solicitors, applicants andopponents. That will include simplification ofthe financial eligibility assessment processfor applicants; reduction of documentationrequired for the civil legal aid applicationprocess; and development of a trainingsupport strategy for solicitors.

4.22 As part of our longer term strategy in relationto public funded advice and assistance, wewill shortly publish a tool-kit and guidance tosupport local authorities to assess theneeds for advice and assistance withintheir areas. We are also working with theScottish Legal Aid Board and a number ofadvice agencies to develop a nationalquality framework for legal advice andinformation.

4.23 Arbitration is a specialised procedure in whichdisputes are referred, by agreement betweenthe parties involved, to an independent thirdparty, the arbiter, to resolve. The majority ofthe law relating to arbitration in Scotland iscommon law. In the 1990s the ScottishAdvisory Committee on Arbitration Law, underthe chairmanship of Lord Dervaird, undertooka detailed review of the law and produced areport making a number of recommendationsfor change. A draft Bill was also prepared. Weare currently undertaking a project to assessthe case for bringing forward legislation toupdate and restate the law of arbitration inScotland, building on the work done by theCommittee.



Improving access to information and advice• in-court advice projects in Edinburgh, Aberdeen, Airdrie, Dundee, Hamilton

and Kilmarnock;• new printed materials and web portal giving information for couples,families and children; and

• advicefinder gateway website to sources of information and advice.

Resolving disputes outwith court• support for the Scottish Mediation Network to raise public awareness and

promote good practice in mediation;• mediation services in Edinburgh, Glasgow and Aberdeen sheriff courts; and• developing legislation on arbitration.


WHAT WE WILL DO

4.24 We will take forward the work we havestarted on reform and restructuring of thesystem of publicly funded advice andassistance. Our aim is to achieve a mixedeconomy of provision, with legalpractitioners, not-for-profit organisations,local authorities and central governmentworking in partnership to ensure everyone inScotland has access to the advice andassistance they need, at a cost they, and thepublic purse, can afford. The next key stagecould be the creation of a nationalco-ordinating body with wide powers tosupport the development of a healthy andvibrant network of service providers. This willbe a matter for an incoming Administration.

4.25 We are working to set up the Scottish LegalComplaints Commission to deliver the policyobjective of increasing public confidence inarrangements for handling complaints aboutlegal services. The anticipated operationaldate for the Commission is late 2008. It willbe for the incoming Administration to decidewhether to take forward our programme ofwork reviewing arrangements for theregulation of the legal profession and

promoting competition in the provision oflegal services in Scotland. This programmeaims to identify pro-competitive reforms inthe consumer interest which are suited to theScottish legal services market. Account isalso being taken of developments elsewhere,including the changes proposed in the LegalServices Bill for England and Wales in thelight of the Clementi Review.

4.26 We will commence sections 25 to 29 of theLaw Reform (Miscellaneous Provisions)(Scotland) Act 1990 to permit professional orother bodies to apply for specific rights ofaudience and rights to conduct litigation onbehalf of their members.

4.27 The current arrangements whereby auditorsof court deal with the assessment andchecking (known as “taxation”) of parties’legal expenses and solicitors’ accountsresulting from litigation and other legal workare outdated and lack transparency. We willwork in partnership with the courts and thelegal profession to consider what the futurearrangements for assessment and taxationof accounts should be.

Advice and information – key future actions• reform and restructuring of system of publicly funded advice and assistance

on civil matters, including creation of a national co-ordinating body;• commencement of sections 25 to 29 of the Law Reform (Miscellaneous

Provisions) (Scotland) Act by mid-March 2007; and• reform of the system of assessing solicitors’ accounts and legal expenses.


civil justice – streamlined civil procedures

5.1 Not all disputes can be, or ought to be,resolved by negotiation between the partiesinvolved. Sometimes the authority of thecourt is needed to obtain recompense forloss or injury, to protect rights or to challengedecisions and actions of public bodies. Insome cases there may be power imbalancesthat put the parties on an unequal footingand would allow one party to put unduepressure on the other. This could arise fromthe relative economic positions of the partiesor from the nature of the personal orbusiness relationship between them. In othercases there may be uncertainties in the lawwhich it is important to clarify, either becausethere is a lot at stake in a particular case, orbecause its outcome could affect a numberof other cases. It is therefore vital that wehave a system of courts and tribunals toprovide decisions determining the rights andresponsibilities in such cases.

5.2 The Executive’s aim is to make sure that wehave available the right structures andinstitutions in the form of appropriate courtsand tribunals, and that these operateefficiently. Disputes which need to beresolved using a formal determinative orjudicial process should be dealt with in asstraightforward a way as possible, in areasonable time and at a cost which isproportionate to the importance and value ofthe issues involved. Procedures should aimto focus the points at issue at an early stage,and give the court powers to ensure thatcases move forward as quickly as isconsistent with justice. The exercise of thedeterminative or judicial function is, ofcourse, the responsibility of the judge ortribunal who is dealing with the case, andhas to be exercised impartially andindependently. The Executive’s responsibilityis to ensure that appropriate resources aremade available and used in ways thatprovide optimum support to the judicialprocess.

Our court and tribunal systems are key to the protection and enforcement of legal rightsand responsibilities.

5

Streamlined civil procedures – key aims• clear, straightforward processes;• efficient systems that keep delays and costs down; and• effective use of resources.


WHAT WE HAVE DONE

5.3 The Sheriff Court Rules Council has thestatutory responsibility for keeping the rulesof the Sheriff Court under review. The Councilinstructs new or revised rules where itconsiders it necessary and submits these tothe Lord President of the Court of Session,who formally makes the rules. We havesupported the Rules Council to put in place anumber of improvements in procedures inthe Sheriff Court. One of the most significantof these was the introduction in 2001 of newrules for commercial cases; these havebeen put into effect in Glasgow andAberdeen. Recent research10 in Glasgow hasshown that they are operating very effectivelyand that the commercial court is a valuedservice to its users.

5.4 We also supported the Rules Council in itsrevision of the Small Claims andSummary Cause Rules. New Small Claimsand Summary Cause Rules were put intoeffect in 2002. In addition, we have providedadvice and support to ensure that the rulesof the Sheriff Court have been revised andupdated as required to reflect therequirements of a wide variety of provisionsin new legislation requiring civil courtorders or appeals provisions. Examplesinclude the new rules required in relation toanti-social behaviour orders and to supportthe guardianship and intervention provisionsof the Adults with Incapacity Act.

5.5 We welcomed the initiative by the Court ofSession to revise the rules dealing withpersonal injury cases in 2003 and theSheriff Principal of Glasgow andStrathkelvin’s more recent personal injurypilot court.

5.6 The Vulnerable Witnesses (Scotland)Act 2004 will, when it is fully brought intoeffect, ensure that vulnerable witnesses incivil as well as criminal cases are given thebenefit of special measures to assist themin giving evidence.

5.7 We are determined to ensure that oursystem of civil justice provides fair andeffective procedures for the enforcement oflegal obligations once they have beendetermined by the courts. Without suchprocedures court orders would have novalue. The Debt Arrangement andAttachment (Scotland) Act 2002 introducedan alternative procedure to that of poindingand warrant sale, namely attachment andexceptional attachment orders.

10 Research into the operation of the Commercial Court procedure in Glasgow Sheriff Court, by Elaine Samuel, Scottish Executive SocialResearch 2005 http://www.scotland.gov.uk/Publications/2005/10/28163103/31038



5.8 Many legal problems and disputes are dealtwith not by the ordinary courts, but byspecialised tribunals set up to deal withspecific kinds of cases. Many of theseinvolve areas of law which are reserved tothe UK Government, such as social security,employment law or tax. We took part in theUK Government’s review of the systems oftribunals which deal with these kinds ofcase and we have worked with the UKGovernment to ensure that the proposals fora GB-wide tribunal service, which have beenbrought forward by the UK Government inthe Tribunals, Courts and EnforcementBill, will work effectively within the Scottishlegal system. A Legislative Consent Motionregarding that Bill was passed on 31 January2007 and we support the work of theAdministrative Justice Steering Group,chaired by Lord Philip, in looking at theadministrative justice system in Scotland.

WHAT WE ARE DOING

5.9 In February 2006 we published aconsultation on the unification, appointment,removal and management of Scotland’sjudiciary, containing proposals to strengthenjudicial independence and give the judgesgreater opportunities to secure the efficientand effective disposal of business in thesuperior courts and the sheriff courts. We arecommitted to placing the JudicialAppointments Board on a statutory basisand to carrying out the other proposedreforms. At the time of publication of thisreport, we are in close consultation with thejudiciary about a number of issues related tothe publication of the consultation document.

Ministers’ present intention is to make asmuch progress as possible with a draft Bill onthe judiciary which would be fit for introductionby the new Administration, if it were sominded, shortly after the election in May 2007.

5.10 The report of the Agency Review of theScottish Court Service (SCS) carried outby Douglas Osler CB KSG, was published inFebruary 2006. The Minister for Justice hasagreed the action plan which was preparedby the SCS in response to the AgencyReview recommendations. The SCSCustomer Satisfaction Survey for 2006reported good overall levels of satisfactionwith SCS services and facilities among bothprofessional and non-professional courtusers, with over three-quarters reporting thatthey felt satisfied overall – a 77% satisfactionrating, against a corporate target of 75% inthe SCS Corporate Plan. Around 5% ofcustomers expressed some degree ofdissatisfaction.

5.11 We continue to support the Sheriff CourtRules Council in a range of projects. Theseinclude its consideration of the place ofalternative dispute resolution in thecourt process and its liaison with the Courtof Session Rules Council on the same issue;the extension of the use of informationtechnology in Sheriff Court process; itsconsideration of whether the type of rulesused in the commercial court should beextended to be used more broadly in othertypes of case; and consideration of whetherto introduce rules for personal injury casessimilar to those which we understand areworking successfully in the Court of Session.


5.12 In the European context, we are involved in anumber of EU initiatives which aim to make iteasier for European citizens to pursue civilclaims throughout the European Union.These include European initiatives in relationto small claims, orders for payment,enforcement, insolvency, intellectual propertyand parental responsibility.

5.13 The Bankruptcy and Diligence etc.(Scotland) Act 2007 modernises the lawrelating to bankruptcy and introduces newcourt procedures and administrativearrangements aimed at making the law moretransparent and more effective for creditorswhile affording appropriate protection todebtors. The Act also makes furtherimprovements to the law relating to theenforcement of civil obligations bycreating the new diligences of landattachment, residual attachment, moneyattachment and interim attachment, andreforming existing enforcement proceduressuch as arrestment of funds or goods,earnings arrestment and inhibition. It alsoputs in place a new system for regulatingthe professions of Messengers-at-Arms andSheriff Officers, unifying them into a singleprofession to be known as Judicial Officers.

WHAT WE WILL DO

5.14 We will support Lord Gill to undertake acomprehensive review of the structure,jurisdiction, procedures and workingmethods of the civil courts in Scotland.We will provide appropriate administrativeand analytical support to the review team toenable it to carry out its work effectivelywithin the time scales to be agreed.Chapter 3 of this paper sets out in moredetail the background to the decision to setup the review and the policy principles whichwill underpin it.

5.15 In relation to inquiries, we will consult inMarch on draft rules for Scottish inquiriesunder the Inquiries Act 2005, with the aim ofensuring that such inquiries operate asefficiently and effectively as possible.

5.16 There are two significant developments incivil justice at the international level which weare taking forward in conjunction with ourEuropean partners. These will promoteimprovements to the international system forthe recovery of maintenance payments,through the updating of the HagueConvention on Maintenance. We will also, inconjunction with other EU member states,ratify the new Hague Convention onCommercial Choice of Court Agreements,which will protect choices made bybusinesses as to the jurisdiction in whichthey wish to settle their disputes.



Streamlined civil procedures – key actions• we will provide appropriate support to enable Lord Gill to carry out an

in-depth review of our civil courts;• we will consult on rules for Scottish inquiries; and• we will implement improvements to the law on enforcement of civilobligations and the regulation of the professions of Messengers-at-Arms andSheriff Officers.


w w w . s c o t l a n d . g o v . u k


This document is also available on the Scottish Executive website:www.scotland.gov.uk

RR Donnelley B47023 02/07

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Documents

Modern Laws for a Modern Scotland: A Report on Civil Justice in