Meeting of the Parliament 21 May 2014
I refer members to my entry in the register of interests as a member of the Faculty of Advocates.
There is, as the convener of the Justice Committee suggested, no disagreement about the greater part of the bill. We need a court system that is fit for purpose, given that, as the court review concluded in 2007, the current system is “slow, inefficient and expensive”. Some of the proposed changes, such as sheriff specialisms and the introduction of summary sheriffs, carry wide support. The facility to hear generally routine matters at an appropriate level, and the freeing up of sheriffs from the less serious criminal workload seems to be sensible.
It is proposed that summary sheriffs would take up to 10 years to be fully established, and we heard evidence that they would offer flexibility. I am sure that there would be variation throughout Scotland in how they would operate, particularly in more remote areas.
The use of technology provides opportunities to reduce expense and the time that is spent on the court process substantially, and must be at the forefront of any court reform, together with procedural rule changes that encourage case management.
Although more work will be passed to summary sheriffs, sheriff courts will, in turn, receive work that is currently heard in the Court of Session. I was struck, however, by the agreement that that could not be delivered by sheriff courts operating as they do at present. Across the board, from the Lord President down, we heard concerns about the expense and inefficiency that comes not only from criminal work taking precedence in sheriff courts, but from the routine frustration of civil cases being heard over many diets and not being resolved at one sitting. Some of the concerns that were expressed on a change in the privative jurisdiction seemed to be based on that experience.
With regard to the proposed specialist personal injury court, my impression is that it would be welcomed—provided that it was properly resourced. It would need to replicate the best features of the current chapter 43 procedure in the Court of Session. If it could do so more economically than it, so much the better.
The committee was right to express its reservations on the proposed change to the privative jurisdiction. In particular, on the proposed change for non-personal injury cases, paragraph 98 of the financial memorandum suggests that the savings to the public purse will be “marginal”. We also have no information on the geographic spread of approximately 700 cases that will be transferred to the sheriff court on that basis; that matter is not specifically dealt with in the Gill review.
By common consent, the commercial procedure in the Court of Session works well. Sheriff Principal Taylor made the point in evidence that Glasgow sheriff court deals competently with commercial cases whose value exceeds £150,000. I am sure that that is true, but the proposed changes will not affect that. What they will do, in the absence of a national commercial court like the proposed specialist PI court, is prevent people in Wick or Stranraer with cases of a monetary value of less than £150,000 from having the option of having their case heard in Edinburgh, unless it is deemed to fall under the conditions of the test for remit. I am pleased by the Government’s comments on remit. In addition, as the Lord President said in oral evidence, some oversight by the court of session of decisions on remit might be not inappropriate.
With regard to the sheriff appeal court, the committee’s report says it all. On judicial review, the bill proposes quite substantial changes, and it is certainly sensible to have some time limit for bringing a petition, even if many of our witnesses thought that three months was too short. We should bear in mind that judicial review is comparatively rare, particularly outside immigration and asylum cases, so at any preliminary hearing for leave to bring a petition, the test should not be set too narrowly.
Finally, the elephant in the room is the question of sanction for counsel. I accept the need to curb disproportionate costs, and I welcome Sheriff Taylor’s proposed revised test. I heard the cabinet secretary’s comments to the committee on the history of the Faculty of Advocate’s comments on previous reforms, and I understand and largely share his view. Nevertheless I remain concerned that current proposals may well be to the detriment of the junior bar. The net result may simply be to encourage the already substantial growth of larger firms of solicitors at the expense of the bar, which may not necessarily represent best value for court users in the long term.
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