The Scottish Government

« Previous | Contents | Next »

Listen

SUPPORTING COURT USERS:
The In-Court Advice and Mediation Projects in Edinburgh Sheriff Court

RESEARCH PHASE 2

CHAPTER FIVE: IN THE SHERIFF COURT

This chapter looks at the context in which the In-court Advice and Mediation Projects operate. It first examines the impact of both projects on those who work in the court: on sheriffs (5.1), and then on sheriffs clerks and other court based personnel (5.2). It then goes on to explore the impact of the In-court Advice Project on those litigants and their representatives who are raising or defending actions against clients of the In-court Advice Project. In particular, it examines the impact of the Project on solicitors (5.3) and on the City of Edinburgh Housing Department (5.4). Finally, it considers the position and role of the In-court Advice and Mediation Projects in the network of advice agencies serving Edinburgh Sheriff Court (5.5). The chapter concludes with a summary of findings (5.6).

5.1 Sheriffs

The In-court Advice and Mediation Projects: Establishing a profile in the Sheriff Court

5.1.1 Phase 1 of the research reported that sheriffs had difficulty in identifying the impact of the In-court Advice Project on the performance of their duties. This was partly linked to the infrequency with which individual sheriffs had sat on the bench in the small claims/summary cause courts over the first year of the In-court Advice Project. It was also due to the observability of the work of the In-court Advice Project which was mostly outwith the view of the court at that time.

5.1.2 By Phase 2, however, there was direct and indirect evidence to support the view that the In-court Advice and Mediation Projects had become well established amongst sheriffs in Edinburgh Sheriff Court. Both solicitors and advice workers reported that sheriffs were more often asking unassisted litigants whether they had been to see the In-court Adviser, or were mentioning the possibility of mediation. Their increased awareness was partly due to the presence of both Projects' staff in court. On Tuesday morning, at the time of the small claims/summary cause court, the Mediation Co-ordinator was now frequently in court. On Wednesday, the In-court Adviser was able to attend the Miscellaneous Ordinary Court where time to pay cases under The Debtors (Scotland) Act 1987 were heard. On Fridays, the In-court Adviser was now joined by the Deputy Manager of Edinburgh Central CAB to deal with the increasing numbers of clients seeking advice when the heritage court sat. This permitted one of them to sit in the court for some of the morning so as to participate in the proceedings of court in those cases where further information could help the court.

5.1.3 Sheriffs were reported by solicitors and advice agency workers to have referred party litigants to the In-court Adviser and Mediation Co-ordinator after noting their presence in court. As one solicitor observed:

Sheriffs were also made increasingly aware of the In-court Advice Project in court by clients who often addressed the court by reading from a script prepared with the help of the In-court Adviser or made some reference to the advice they had received from the In-court Advice Project.

5.1.4 The Sheriff Principal was also responsible for increasing awareness of both Projects. In particular, reference was made by the In-court Advice Project staff to a meeting in the summer of 1999 when all Edinburgh Sheriff Court sheriffs were invited to a presentation of the work of the Project in the Sheriff Court. This was thought to have been responsible for an increasing number of referrals from sheriffs to the Project in the following months and subsequently. The In-court Adviser also reported that she made a point of introducing the work of the Project to any sheriff newly appointed to Edinburgh Sheriff Court. This was somewhat more difficult, however, with regard to temporary sheriffs. During the period covered by Phase 1 of the research, few temporary sheriffs had sat in the small claims/summary cause or heritage courts. During the summer months of 1998 and 1999, however, they made quite frequent appearances, particularly in the heritage court. 36 Given the relative inexperience amongst some temporary sheriffs in the heritage court, the In-court Adviser reported making a special effort in the short space of time prior to temporary sheriffs coming on the bench to introduce herself and the role which she was able to play in that court - to which they had responded positively.

The In-court Advice and Mediation Projects: Referrals from sheriffs

5.1.5 An increased awareness of the In-court Advice Project amongst sheriffs is reflected in the rising number of referrals from sheriffs to the In-court Advice and Mediation Projects between Phase 1 and 2 (see 3.4.1 and 4.2.3). Only five clients were referred to the In-court Advice Project by sheriffs during Phase 1 of the research while 16 were referred during Phase 2. At least five sheriffs were cited by the two civil law practitioners interviewed as "keen on mediation", and it is likely that more sheriffs would have been cited had interviews been conducted with more civil law practitioners. Only five litigants were recorded in the Mediation Project database as having been referred to the Mediation Project by sheriffs It was generally agreed, however, that figures derived from the Project database are likely to be an underestimate of shrieval referrals because Project clients do not always volunteer the information. Thus, for example, clients who were identified as referred by court staff might very well have been referred by sheriffs via their bar officers. As one In-court Advice Project staff member explained:

5.1.6 Both the In-court Adviser and other staff members reported an increased number of referrals from sheriffs to the In-court Advice Project during the course of proceedings in court. Project staff reported that least four sheriffs were asking party litigants with some frequency whether they had consulted with the In-court Advice Project. Others were doing so sporadically. Referrals were particularly noticeable when party litigants 'were not coming across clear" and sheriffs were "keen to check up on the facts before coming to a decision". In one case, for example, a litigant defending a claim by the Child Support Agency was referred from the Ordinary Court to the In-court Advice Project after he had informed the sheriff that his solicitor had recently withdrawn on the grounds that "he did not know very much about the Child Support Agency". The defender was referred by the sheriff when he had arrived in court with a great deal of paperwork but without the means to present the relevant aspects of his case to the court.

5.1.7 Sheriffs were also reported to be referring party litigants when they had reason to believe that party litigants were not understanding proceedings "when they are seen to be struggling or simply don't have a clue". Thus, in the midst of a proof hearing, one sheriff referred a party litigant to the In-court Advice Project when the litigant "suddenly blurted out that he had not understood anything of what was going on". Another sheriff was reported to have asked a party litigant whether he knew why he was in court. When the response was in the negative, he was referred to the In-court Advice Project.

5.1.8 Sheriffs were also reported to be referring party litigants when they had reason to believe that party litigants did not understood the consequences either of shrieval decisions or of their own position. Thus, after making a decree for eviction against a party litigant, one sheriff referred the defender to the In-court Advice Project so that the implications and consequences of that decree could be properly explained to the party outwith the court. Another sheriff referred a party litigant to the Project after granting a pursuer's request for sequestration and asking the party defender if he understood what this meant. A third sheriff referred a party defender to the In-court Advice Project from the Ordinary Court so that the potentially serious implications of her refusal of child visitation rights could be spelled out. 37

5.1.9 While there was some consistency between sheriffs in the circumstances under which they referred litigants to the In-court Advice and Mediation Projects, the research could not evaluate whether all sheriffs took the opportunity of referring party litigants to the Projects when these same circumstances were met.

The In-court Advice and Mediation Projects: The views of sheriffs

5.1.10 The two sheriffs interviewed testified to the difficulties which sheriffs sometimes faced when dealing with unrepresented litigants in court. This was partly because party litigants "often lack the sense of relevance which a lawyer has". While parties may want to win their cases or defend their actions,

Apart from the issue of relevance and knowing what to say in court, sheriffs recognised the strain which party litigants are under when they "stand up in court, in a totally unfamiliar setting, before the sheriff and a court full of people".

5.1.11 Neither of the sheriffs interviewed had unrealistic expectations of party litigants. At the same time, they were well aware of the helpfulness of articulate, confident presentations, particularly in the context of a large, busy court. Where unassisted litigants were unable to present clearly the relevant information, it was left to the bench to ascertain both what they were trying to say and issues relevant to the case. In heritable actions, for example, it was often first necessary to establish how much defenders were in arrears and this was likely to be difficult if they had not brought with them the relevant documentation. Because unassisted defenders were usually trying to do everything to avoid being ejected from their accommodation, they often had to be encouraged to make realistic offers to the Council - and this was very difficult to help them do in the tense atmosphere of their short appearance in court. The In-court Advice Project had made a useful contribution to the bench and to the court with regards to these matters, helping its clients to calculate their arrears and their offers prior to appearing in court, and informing them of the documentation which they should produce on their appearance in court.

5.1.12 Unassisted litigants were also unable to identify any technical and/or legal flaws in the summons which had been taken out against them. While sheriffs may check every summons and application for jurisdiction and competency, they are still

Hence, for example, one sheriff cast his mind back to a case in which the Council had raised an action for ejection against a tenant, but had failed to note there was a joint tenancy in existence. He put this forward as a good example of

As one sheriff said,

Besides the information available, it was also difficult to adjust the balance because of the need to preserve shrieval impartiality: "You cannot take over the defender's case for him and give the impression that you are taking up cudgels on his behalf against the pursuer" (see also Samuels, 1998). The In-court Advice Project contributes to the court, therefore, by helping to adjust the imbalance between professionally represented and unrepresented litigants while allowing shrieval impartiality to be maintained.

5.1.13 This was also cause for professional satisfaction. As one sheriff put it:

5.1.14 Despite the more interventionist role which small claims and summary cause (heritage) procedure provided for sheriffs, sheriffs were still in an unsatisfactory position because they were still operating within the context of an adversarial system:

The In-court Advice Project provided sheriffs with greater confidence that relevant material was being brought before the court so that they could make decisions on the basis of the best possible information.

5.1.15 Interestingly, the In-court Adviser may also have played a socialising role when temporary sheriffs were operating in the sheriff court. Thus, for example, temporary sheriffs were occasionally on the bench in the summary cause (heritage) court over the summer of 1999. The In-court Adviser reported that she wrote her clients' scripts according to her perception of the expertise of whichever temporary sheriff was on the bench:

5.2 Sheriff clerks and other Court Staff

The contribution of sheriff clerks and other court staff

5.2.1 A new Sheriff Clerk Depute was appointed to the small claims/summary cause section in March 1999 and remained there until November 1999. Duties were transferred by the outgoing Sheriff Clerk Depute to the incoming Sheriff Clerk Depute who reported receiving comprehensive information as to the operation of the In-court Advice Project and the In-court Adviser's role in the Sheriff Court in the transfer period.

5.2.2 s Clerk of Court, the new Sheriff Clerk Depute continued the practice before the sheriff came on the bench of announcing to the court the availability of the In-court Advice Project, particularly in the heritage court. He reported that it was often unnecessary in the small claims and summary cause court because most party litigants were now waiting outside the door of the In-court Advice Project before the sheriff came on the bench. When party litigants queued up to see him, however, he reported always asking them if they had taken advice and, if not, whether "they are happy about going forward without it or whether they want to see the In-court Adviser". The Clerk of Court also continued taking the names of clients waiting to see the In-court Adviser while court was in session and putting them to the back of the roll. This practice had first been introduced in the Friday morning heritage court and Tuesday morning small claims/summary cause court before the commencement of Phase 2 research. In both cases, a volunteer acted as a 'receptionist' outside the court, recorded the names of those who wished to see the In-court Adviser, and handed that list over to the Clerk of Court. According to one In-court Advice Project staff member,

5.2.3 The Clerk of Court also attempted to bring forward to the front of the roll all those whom the In-court Adviser was known to have seen prior to the sheriff coming on the bench. In this way, the Clerk of Court sought to give them an opportunity to consult with the In-court Adviser after the hearing and " to work it so that the In-court Adviser is seeing clients right through the morning, rather than having a rush of clients towards the middle and end of the morning." The Clerk of Court was therefore instrumental in helping to distribute the business of the In-court Adviser more evenly while court was in session.

5.2.4 During Phase 2 of the research, the sheriff clerk in the Wednesday morning Ordinary (Miscellaneous) Court, also began to announce the presence of the In-court Advice Project before court commenced. This, together with the presence of the In-court Adviser, was partly responsible for the large increase in clients with matters relating to the Debtors (Scotland) Act 1987 in the second research phase (see 3.2.8-3.2.12). It was also responsible for the large proportion of these clients who consulted with the In-court Adviser both before and after court was in session (see 3.2.13-3.2.15). Like the Sheriff Clerk Depute of the small claims/summary cause section, the sheriff clerk of the Ordinary (Miscellaneous) Court took the names of parties waiting to see the In-court Adviser and put them to the end of the roll. As a staff member of the In-court Advice Project explained: "It's a very short court and, because so many solicitors are there, it's a very intimidating one". The offer of advice was therefore taken by many.

5.2.5 Co-operation between staff in the Sheriff Clerk's Office and the In-court Advice Project ensured that a large number of those appearing in court received advice if they so required it. By the end of the period covered by Phase 2 of the research, a well planned and co-ordinated system based on co-operative links between staff in the Sheriff Clerk's Office and the In-court Advice Project was in place, particularly as it related to the courts. Because a system was now in place which reduced the extent to which the Project impinged on court time, the In-court Adviser reported that the Project was less dependent on sheriffs for accommodating to the requirements of the In-court Advice Project. As one Project staff member added:

However, the In-court Adviser reported that Clerks of Court were also receptive to less professional modes of communication when necessary, such as accepting and relaying "semaphore" messages while court was in session. This was confirmed by a Clerk of Court:

By doing so, sheriff clerks acted as a medium of communication between the In-court Adviser and the sheriff on the bench, to the benefit of the court and court users. 38

Referrals from court staff

5.2.6 The contribution of referrals to the In-court Advice Project from court staff, including staff in the Sheriff Clerk's Office, and the changes in patterns of referral have been examined in some detail in Chapter 3 (3.4.1-4). These may now be linked to some of the changes which were introduced in the intervening period (as described in the previous section). The In-court Advice Project was less dependent on the Clerk of Court for referrals because receptionists were in place outside the court to take the names of parties requiring the services of the Project. Bar officers and messengers were now taking a more active role in referring clients to the In-court Advice Project, though this was probably offset by a decrease in the number of referrals from security guards. The elimination of referrals to the Project of criminal cases (see 3.3.18-3.3.19) is indicative of the greater awareness amongst security guards as to the role and remit of the In-court Advice Project.

5.2.7 One member of the In-court Advice Project staff believed that she had detected a falling off in the pro-activity of the Sheriff Clerk's Office in certain areas, for example, the Project was less likely to be informed by the Sheriff Clerk's Office in advance of full hearings involving one or more party litigants. Referrals from the Sheriff's Clerk Office were found to have increased over the two research phases, however, and they remained stable as a proportion of all referrals (see Table 3.15).

Court staff and the In-court Advice Project

5.2.8 Interestingly, the new Sheriff Clerk Depute (small claims/summary cause department) admitted that, before taking post, he had some concerns as to how the In-court Advice Project would impact upon him: "I wasn't sure if it was a good idea before I started and I wondered how it might benefit myself and the section". Now he was of the opinion, however, that:

5.2.9 Like Sheriff Clerk Deputes before him, he pointed to the role which the In-court Advice Project played in diverting conflict which was likely to arise because staff in the Sheriff Clerk's Office were not allowed to give advice or take sides. Because of this, he felt that it was very important to stress to parties that though the In- court Advice Project is located in the court, it is absolutely independent of it. This made parties far more receptive to the information given. As one sheriff clerk related:

5.2.10 The In-court Advice Project made an impact on the work of the sheriff clerks both in the Sheriff Clerk's Office and in the court. The Sheriff Clerk Depute reported finding it helpful to refer parties to the Project from the counter in what he referred to as 'grey' areas:

5.2.11 The contribution of the In-court Advice Project to streamlining court services was also evident in the court. The most obvious cases, according to the Clerk of Court, were those in which unassisted parties were facing solicitors and

The Clerk of Court noted that it was usually possible for him to recognise those parties who had taken advice from the In-court Adviser:

Interestingly, the same Clerk of Court had recently moved into the Ordinary (Miscellaneous) Court and had witnessed the same streamlining impact of the In-court Advice Project in that court. "So at the end of the day", he concluded, "we are all in it together - sheriffs, sheriff clerks and solicitors - and we all benefit from the courts being run well and efficiently".

5.3 the In-court Advice Project and 'the Other Side': Solicitors

Introduction

5.3.1 In this and the following sections, the In-court Advice Project is assessed for its impact on the 'other side', that is, those parties or their agents who face the In-court Adviser's clients. While 'the other side' comprised pursuers and defenders, corporate bodies and individuals, most clients of the In-court Advice Project faced either the City of Edinburgh Housing Department or solicitors who were pursuing an action against them (see 3.3 13-3.3.15). Interviews were conducted to reflect this. Two City of Edinburgh Housing Department officials were interviewed as well as two solicitors representing firms dealing with monetary claims on behalf of pursuers. Their experience of the In-court Advice Project was as opponents of clients advised by the Project. Observations of other court users and practitioners as to the evolving relationship between solicitors and the In-court Advice Project are also included.

Solicitors and the In-court Advice Project

5.3.2 Phase 1 research found that though solicitors had acknowledged certain advantages which the In-court Advice Project afforded them, they had been reluctant to endorse it fully. This was mainly because the Project was sometimes responsible for making them wait in court longer than they would have otherwise have expected. In the period covered by Phase 2 of the research, systems appeared to have evolved so that there was less need for solicitors to wait until the end of the roll for their cases to call again. At the same time, some of the advantages of facing defenders advised by the In-court Advice Project were becoming more apparent.

5.3.3 This was particularly the case in the Ordinary Court and the heritage court where many of the same solicitors had regularly been appearing on behalf of pursuers since the In-court Advice Project was first introduced into Edinburgh Sheriff Court. This provided an opportunity for a relationship of trust to develop between solicitors and the In-court Advice Project staff. As one Project staff member reported:

5.3.4 The In-court Adviser reported that it had been more difficult to build up the same trust with solicitors operating in the small claims/summary cause court:

5.3.5 There were fewer complaints regarding time spent waiting for defenders to take advice from the In-court Advice Project. This was particularly so in the small claims/summary cause court where a more efficient system had evolved since the Project was first introduced into Edinburgh Sheriff Court (see 5.2.1-5.2.5). Cause for concern, however, was noted by one solicitor who regularly represented Housing Associations in the heritage court. Because City of Edinburgh Council dominated this court, all other cases are usually put to the front of the roll to allow solicitors to leave once their cases have been called. Where defenders in actions brought by Housing Associations were waiting to see the In-court Adviser, however, one solicitor reported that he had been required to wait until just before 'proof call-over' for his case to re-call. He suspected that clients were not consulting with the In-court Adviser in the order by which they were called in court. He thought that consultations should, if possible, follow that order, though he had not requested that they do so.

5.3.6 In other respects, the In-court Advice Project was acknowledged as being responsible for saving solicitors' time, particularly in the small claims/summary cause court. As one solicitor explained:

5.3.6 As another solicitor observed: "If you get two party litigants in a case, then they conduct a full hearing almost every time they are in court". From his vantage point in court, the Clerk of Court confirmed solicitors' observations. Thus, though solicitors were sometimes kept waiting for their cases to call again while defenders consulted with the In-court Adviser, at the same time they reported that the court was proceeding at a quicker pace.

5.3.7 The In-court Advice Project was found to be of assistance to solicitors representing the 'other side' at several stages in the proceedings. Firstly, solicitors reported that there was now someone with whom they could speak, if necessary, before cases called in court. As one solicitor explained: "It's a good point of contact for me, because the In-court Adviser will tell me before going into court 'This is where we stand and this is our position' ".

5.3.8 It was standard for solicitors to call each other prior to a hearing to ask, for example, whether quantum or liability could be agreed, or even to settle the matter before going to court. This was not possible when party litigants were involved, partly because party litigants were thought not to understand what was involved. Solicitors found it useful in cases involving party litigants to have someone designated with whom they may speak: "We can try to 'test the waters', state our position and have her explain to the defender what we are going to be asking for".

5.3.9 The In-court Adviser sometimes had information about the case which they, as agents and not principal solicitors, did not have. As the In-court Adviser explained:

5.3.10 According to one solicitor, the In-court Adviser is helpful:

The In-court Advice Project therefore made it possible to negotiate in cases involving party litigants prior to them calling in court. Sometimes this involved negotiation with the In-court Adviser, though more often the In-court Adviser facilitated the negotiation by reassuring her client as to what was standard practice. Solicitors, and particularly those representing Housing Associations, took the opportunity to negotiate with Project clients. This was confirmed by the In-court Adviser: "with the result that sometimes all that needs to happen in court is that they have to go up to ask for a continuation to monitor the arrangements".

5.3.11 Solicitors' time and litigants' costs, as well as court time, were also saved by the presence of an independent advice service administering to party litigants. As one solicitor explained:

5.3.12 The importance of the presence of an independent source of advice for party litigants was re-iterated by another solicitor:

5.3.11 The presence of the Project in the Sheriff Court was sometimes responsible for avoiding proof and while this was not always in solicitors' interests, it was almost always in the interests of their clients, particularly in small claims cases where the full cost of a proof to legally represented litigants was rarely recovered. It was also responsible for saving court and solicitors' time because, as one solicitor said:

Though, as the same solicitor pointed out, this all depended upon clients taking the advice of the In-court Adviser. 39

5.4 The In-court Advice Project and 'the Other Side': The City of Edinburgh Housing Department

Introduction

5.4.1 The number of heritage clients grew from 452 in Phase 1 of the research to 857 in Phase 2. Most of them were defenders in eviction actions raised by the City of Edinburgh Council. In Phase 1 of the research, the Council had pointed to the benefits brought by the In-court Advice Project, such as the acceptance of offers or the investigation of housing benefits before cases called in court. It also pointed to the responsibility of the In-court Advice Project for the additional time spent waiting in court.

Referrals

5.4.2 In the period covered by Phase 1 of the research, over one third of all clients were referred to the City of Edinburgh Council Housing Department, either to the Court Section or a local office, for clarification and/or negotiation. The number of Project clients referred to City of Edinburgh Housing Department rose considerably in the period covered by Phase 2 of the research.

5.4.3 Of 1017 clients who approached the In-court Adviser between 1 December 1998 and 31 August 1999, 288 (28% of all clients but 34% of all defenders) were advised to make contact with the parties which had raised an action against them for further clarification and negotiation. Most of those referred for further negotiation or clarification were defenders in heritage actions brought by the City of Edinburgh Council (264 or 91%). Of these, 245 (93%) were told to contact the Court Section of the Housing Department of City of Edinburgh Council and 8 (3%) to contact their local housing office. In the period covered by Phase 2 of the research, therefore, a very large number (245) and proportion (24%) of all Project clients were advised to contact the City of Edinburgh Housing Department for clarification and/or negotiation before their case called in court.

Responses to the In-court Advice Project

5.4.4 By Phase 2, the Court Section of the City of Edinburgh Council Housing Department was finding the In-court Advice Project making less of a direct impact on its time. Because the Sheriff Clerk now received a list of those consulting with the In-court Adviser early on Friday morning, these cases were laid aside at the start of the morning for calling later in the morning. The system therefore differed from Phase 1 when many cases were set aside only once they had been called.

5.4.5 Nevertheless, the Housing Department believed that the In-court Advice Project made an indirect impact on their time, by being responsible for an increasing number of continuations - mainly amongst defenders first consulting with the In-court Adviser on the morning their case was calling: " Because she can't give the proper advice they need then, she has to ask for a continuation because the only thing she can do is tell them to go and see a CAB". It was suggested that many defenders were waiting until the day their case called as a delaying tactic. The Housing Department was of the opinion that a strong warning should be issued in the insert of heritage summonses so that "they cannot come only on the day of court and get a continuation on that basis". Indeed, the insert in the summons should be changed to " tell them to come in to see the In-court Adviser on the day they get the summons". Advice agencies strongly disagreed with this proposal in view of its likely impact on diverting clients from the advice agencies nearer their home as well as away from the opportunity to be represented in court by those advice agencies.

Housing Policy and the In-court Advice Project

5.4.6 In the report of Phase 1 research, it was suggested that Policy shifts in the City of Edinburgh Council's Housing Department were very likely to be responsible for changes in the volume and type of business conducted by the In-court Advice Project (see Supporting Court Users, 8.3.2.). Since August 1999, the City of Edinburgh has been involved in co-ordinating a city-wide rent arrears policy. The impact of this policy is not reflected in the quantitative findings emerging out of Phase 2 data which covers the nine month period to August 1999. The likely impact of the Council's new policy was mentioned in interviews with the City of Edinburgh Council's Housing Department, however, as well as with other court practitioners. Observations and predictions as to its impact, as well as some background to changes in policy, are therefore of relevance to this report.

5.4.7 Until mid-1999, each local housing office had been responsible for developing its own rental arrears strategy. In August 1999, however, the Council embarked on introducing a central policy along the lines of a strategy which had already been piloted by one of the local housing offices and had been deemed successful. The strategy was described as a 'minimum framework' around which city-wide policy was to be co-ordinated. After missing three rental payments, tenants are visited by area teams, with a view to reducing the number of "no contact" cases before raising an action against them and to providing tenants with the opportunity for discussing extenuating circumstances, housing benefits and other debt problems. All tenants so contacted are then obliged to make a financial arrangement with the Council. This financial arrangement is based on a standardised formula rather than, as previously arranged, at the discretion of local housing officers. It does not take into account other debts and commitments, though it does take into account fuel and other housing costs, and tenants are given the opportunity to consult with the Advice Shop should they so require. Should the Advice Shop suspect that the financial statement which has already been signed cannot be met, it may request an interim arrangement from local offices.

5.4.8 A decree for eviction will be sought as soon as there is default on these arrangements, as well as in those cases where no contact has been made. The decision to raise an action will be made by each local office. At the time at which interviews were conducted with the Council (October 1999), the Council was phasing in the signing of financial statements with those in arrears. More actions were already reported to have been raised during this period, though the Council did not know whether this was because arrangements had not been kept or because there were more 'no contacts'. Why more actions were being raised, however, was about to be monitored by the Council "as part of the new monitoring system which we are putting in place to monitor this new minimum framework in Edinburgh".

5.4.9 Just as the decision to seek decree lies with each local office, so another aspect of the new policy is the termination of the Court Section's remit to negotiate with tenants once an action has been raised. This was likely to reverberate on tenants' negotiating power and to make referral by the In-court Advice Project to the Court Section for negotiation a non-viable option. The In-court Adviser also predicted an impact on the heritage court and on the In-court Advice Project :

5.4.10 The new policy was also thought likely to make an impact on the kinds of cases coming before the bench. Since local offices do not bring cases to court, they do not face the sheriffs and they may not understand 'reasonableness' under The Housing (Scotland) Act 1987. The Court Section officer of the Housing Department is now taking instruction from local housing offices to move for decree, with little room left for discretion at court and before court. As one advice agency worker suggested: "Housing officers will be negotiating who haven't a clue as to how the court works". The success of the new housing policy, therefore, will partly depend on whether the bench considers actions raised by the Council for eviction are reasonable. As she went on:

5.4.11 Another advice worker suggested that, with more cases coming into court,

With the potential for negotiation eliminated, the new housing policy makes the In-court Adviser's advice even more crucial since what the defender brings to court and what the defender is able to demonstrate to the court is the only thing between the tenant and eviction.

5.4.12 The City of Edinburgh's housing policy and its implications for tenants, the In-court Advice Project and the advice agency sector may be contrasted with Midlothian Council's method of handling rent arrears. Actions raised by Midlothian Council for eviction were noticeable by their absence in the period covered by Phase 2 of the research. According to one advice agency in the Midlothian area, the Council was referring tenants with arrears to the two Citizens Advice Bureaux which served Midlothian. This presented CABx with the possibility of negotiating arrangements with Midlothian Council on behalf of their clients before actions were raised and before they were brought to court: "We have a good relationship with them (the Council) and this means we are usually able to negotiate realistic payments for our clients".

5.5 Advice Agencies

Referrals to Advice Agencies: Comparisons between Phase 1 and 2

5.5.1 In the period covered by Phase 1 of the research, just over one half of all clients (307) had been referred to advice agencies for further advice and assistance. Altogether, the In-court Advice Project had made 308 referrals to advice agencies, mainly in the voluntary sector. In the period covered by Phase 2 of the research, nearly one half of all clients (502) were referred to advice agencies, with 514 referrals to advice agencies made altogether (some clients were referred to more than one agency). In the period covered by Phase 2 of the research, a far higher number of clients were referred to advice agencies in the statutory sector (Advice Shop and Trading Standards) and to the Mediation Project than in Phase 1, while the number of clients referred to advice agencies in the voluntary sector doubled. Amongst referrals to the voluntary sector advice agencies, increases in the number of clients referred to CHAI and Leith CAB were particularly marked. 40

Table 5.1 Number of referrals from the In-court Advice Project

Phase 2 Referrals: Analysis by procedural remit of case and procedural status

5.5.2 Clients referred by the In-court Advice Project to other agencies for advice and assistance were mostly involved in heritage cases. Almost 60% of all the referrals made by the In-court Advice Project were amongst clients involved in heritage cases, 24% amongst clients involved in small claims, 8% amongst clients involved in summary cause and 5% amongst clients involved in ordinary cause actions connected with the Debtors (Scotland) Act. Almost two thirds of all small claims clients were referred by the In-court Adviser to other agencies were referred to the Mediation Project. Very few small claims clients were referred to other advice agencies for advice and assistance (11 clients in all). As in the period covered by Phase 1 of the research, then, the In-court Adviser was able to handle and deal with almost all enquiries by small claims clients without referring them on to other advice agencies.

5.5.3 Clients referred by the In-court Advice Project to other agencies for advice and assistance were mostly defenders (80% of all referrals). Though 20% (102) referrals were pursuers, over two thirds of them were referred to the Mediation Project. Only a very few pursuers (7 clients in all) were referred to other advice agencies. As in the period covered by Phase 1 of the research, then, the In-court Adviser was able to handle and deal with almost all enquiries from pursuers without referring them on to other agencies, except for mediation.

Phase 2 Referrals: Take-up of referrals

5.5.4 The take-up of referrals constitutes an important criterion of the In-court Advice Project's effectiveness. "Where take-up of advice and assistance is really crucial ", according to one advice agency worker, "is between the first and continued hearings - for sorting out and chasing up housing benefit issues, backdating letters and so on". The quality of information which could be provided on take-up, however, was found in Phase 1 of the research to vary considerably between advice agencies. Amongst specialist agencies and where appointments had been made, information had not only been forthcoming but a high proportion of take-up had been noted. It was more difficult to ascertain take-up of referrals amongst agencies where appointments were not made and where traffic was heavy.

5.5.5 Steps were undertaken by the In-court Advice Project to provide greater feedback on the take-up of referrals during the period covered by Phase 2 of the research. Lists of persons referred by the In-court Advice Project were sent out from the In-court Advice Project to advice agencies from July 1999 onwards. Advice agencies were asked to follow up those persons who had been referred to them but who had not taken up their referral. Not all advice agencies appear to have been targeted, however, and some were targeted only once or twice between July 1999 and March 2000. Since this initiative began in July 1999, moreover, it was too late for referrals made in the period covered by Phase 2 of the research to be identified and analysed using the research database.

5.5.6 Though they had not been requested to do so and though it was not undertaken consistently, a few advice agencies (2) reported back to the In-court Advice Project as to initial and subsequent take-up of referrals. Of the eleven persons referred to the Advice Shop in September and October 1999, for example, six were reported to have taken up their referral. Of the eight persons referred to the Advice Shop in November and December, three took up their referrals. Later referrals to the Advice Shop were checked by different personnel and the information was not available. The rate of take-up to an advice agency somewhat further afield appears to have been considerably lower. Of ten referrals between September and December 1999, just two were identified as taking up their referral.

5.5.7 Because advice agencies were not expected to report back to the In-court Advice Project, contact was made with most advice agencies during the research period. Some agencies reported that they had written to 'no-show' referrals while others had kept a "watchful" eye but had not attempted to communicate with them. One advice agency had not done so because it was felt to be in breach of their privacy. Some agencies reported that, because the lists of referrals received constituted confidential information, they were either shredded fairly shortly after they were received or after those listed were contacted. They were therefore not able to provide the research with exact figures as to the rate of initial or subsequent take-up. Of those agencies which had written to 'no-show' referrals, however, three advice agencies reported that this was successful in bringing in clients who had not initially taken up their referral. One agency reported that it was often difficult to follow up those who had not made contact because addresses given were incorrect. Representatives of three agencies, at least, were supportive of the initiative, whatever rate of subsequent 'take-up' was achieved: "even if it were just one client, it would be worth it". One advice agency reported that though the exercise had been unproductive so far, it was nevertheless useful. Other agencies felt that they had a duty of care to those people whom they already were dealing with. They could ill-afford to recruit more clients. There were therefore clearly differences between advice agencies on several different levels as to the appropriateness and/or effectiveness of this initiative.

5.5.8 There was near consensus, however, as to how higher rates of 'take-up' could be achieved. Referrals needed to be more directive and an appointments system was recommended. Some advice agencies believed that an appointments system was more in evidence in the first months of the In-court Advice Project, when the In-court Adviser had fewer clients and more time to book an appointment on behalf of the client while the client remained in the office:

5.5.9 This was also believed to be a more professional way of going about business: "They are given a named person and a real appointment". An appointment system also provided better advice, both quantitatively ("We can't give 'walk-ins' more than half an hour") and qualitatively ("We can tell them what to bring with them and what to prepare before seeing us"). The Advice Shop, however, did not subscribe to this position since the debt and consumer advice section of the Advice Shop was providing a drop-in service for debt and consumer advice, and not operating on an appointments system.

Advice Agencies and the In-court Advice Project

5.5.10 The relationship between the In-court Advice Project and advice agencies was not always a one-way process. Some advice agencies were reported to be referring clients to the In-court Advice Project with some regularity. In some cases, there was justification for doing so, for example, " when there's a 'time to pay' order coming up and then it's helpful to know someone in the court". In some cases, however, the In-court Advice Project was called for advice when "they could well manage it themselves if they looked at their information systems". By showing them where and how the information could be accessed, the In-court Adviser appeared to function as an agent of empowerment and socialisation in the advice agency sector.

5.5.11 The use by advice agencies of the In-court Advice Project as a resource centre was most common amongst the smaller advice agencies. A manager of one smaller CAB, for example, reported that the In-court Advice Project was used mostly for getting advice for its workers. This was particularly the case in relation to small claims:

5.5.12 The In-court Advice Project was also of use to the advice agency sector in the sheriff court. As the In-court Adviser suggested: "We can give them tips about the court such as which sheriff is on today and how they are likely to act". This was confirmed by a CAB manager:

"On occasion", so another advice agency manager reported, "we can ask her to look after a client when we cannot get up to court".

5.5.13 By Phase 2, the In-court Advice Project had become well established in the network of advice agencies serving the Edinburgh area. One advice agency manager reported that the In-court Adviser had spoken to all of the agency's workers and "had done a session with them". She reported that this was not only responsible for promoting the Project but was a key factor in building up a relationship of trust between the two agencies. "As a result", so she believed, " our advice workers can seek advice from her, and this has been of great benefit to the Bureau and our clients".

5.6 Summary of findings

Sheriffs (5.1.1-5.1.12)

5.6.1 A far greater awareness of the presence of the In-court Advice Project was found to have developed amongst sheriffs by Phase 2, compared with Phase 1. This was partly due to the increasing visibility of Mediation and In-court Advice Project staff in the court, made possible by a growth in the number of staff, a changed court timetable and by clients addressing the court. It was also due to a presentation of the work of both projects which was organised by the Sheriff Principal and attended by all sheriffs in the summer of 1999.

5.6.2 Growing awareness of both projects is reflected in the increasing number of referrals by sheriffs between the two phases of the research. There was good reason to suspect, moreover, that these figures underestimated the number of referrals by sheriffs. Sheriffs were also reported to be asking party litigants with some frequency as to whether they had consulted with the In-court Advice Project. They were referring them to the In-court Advice Project when they had reason to believe that party litigants had not understood either the proceedings or the implications of their actions as well as when they needed clarification or further information before coming to a decision.

5.6.3 Sheriffs reported that the In-court Advice Project was able to address some of the problems faced by the bench by unrepresented litigants. Despite greater interventionist powers provided by the rules, sheriffs were still dependent on the information put before them. By helping litigants to focus on issues relevant to the case and by assisting them in presenting their case to the bench, sheriffs had greater confidence in the information which unrepresented litigants were putting before them.

Sheriff clerks and other court staff (5.2.1-5.2.11)

5.6.4 The Clerk of Court was instrumental in informing party litigants as to the availability of the In-court Advice Project. During Phase 2, this was extended to the Ordinary (Miscellaneous) Court and was responsible for the large increase in referrals of clients with matters relating to this court. The Clerk of Court also helped to distribute the business of the In-court Adviser more evenly over the time when court was in session while at the same time ensuring that no litigant missed being called in court. By Phase 2, a tightly co-ordinated system based on co-operative links between the Clerk of Court and the In-court Advice Project was found to be in place. This meant that the In-court Advice Project was less dependent on sheriffs for accommodating to the requirements of the Project.

5.6.5 Compared with Phase 1, bar officers and messengers were found to be taking a more active role in referring court users to the In-court Advice Project while security guards were found to have a clearer idea of the remit of the Project. Like previous occupants of his position, the Sheriff Clerk Depute (small claims/summary cause department) found the work of the In-court Advice Project contributed to streamlining the services provided in his department and well as in the court. This was most obvious in court, particularly when party litigants were facing solicitors. It was less obvious but nonetheless helpful for staff in the Office of the Sheriff Clerk to refer party litigants to the In-court Adviser. The perception of the In-court Adviser as independent from the court was emphasised in this respect.

The 'other side': Solicitors (5.3.1-5.3.13)

5.6.6 By Phase 2, it was becoming more apparent to solicitors that there were advantages to facing defenders who were being advised by the In-court Advice Project. In the Ordinary Court, in particular, a relationship of mutual trust appears to have developed more so than in the small claims and summary cause court where there was a fast turnover of trainees. Even here, however, there were fewer complaints by solicitors as to waiting around and wasting time, possibly because a more efficient system had evolved since the In-court Advice Project was first introduced. Solicitors also acknowledged that the Project was responsible for saving their time in other respects, particularly since court was proceeding at a quicker pace now that party litigants were being advised.

5.6.7 Solicitors found the In-court Advice Project to be of assistance to them at several other stages in the proceedings. Where they were facing unassisted litigants, it was useful having a point of contact before cases called in court. When they were acting as agents for principal solicitors, information was often available to the In-court Adviser which was not available to them. While it was standard for solicitors to call each other prior to a hearing in attempt, for example, to agree quantum or liability, this was not possible where party litigants were concerned. The In-court Advice Project, however, provided an opportunity for negotiation in cases involving party litigants prior to cases calling in court, and the In-court Adviser reported that solicitors had taken that opportunity on many occasions. In sum, solicitors found it problematic to deal with the 'other side' when party litigants were involved, and the presence of an independent legal advisory service in the court helped to address the difficulties which faced them under these circumstances.

The 'other side': Local Authority Housing Departments (5.4.1-5.4.12)

5.6.8 The number of heritage clients rose from 452 in Phase 1 of the research to 857 in Phase 2. A large proportion of all In-court Advice Project clients were defenders in heritage cases brought by The City of Edinburgh Council. The City of Edinburgh Housing Department reported that the In-court Advice Project was now making less of a direct impact on its time in court since cases were now being laid aside earlier on in the morning for calling back. However, because of the increasing number of continuations, mainly amongst defenders first consulting with the In-court Adviser on the morning their case was calling, the Project was making an indirect impact on the Council's time. The Council reported on the continuing benefits brought by the In-court Advice Project through the large number of its heritage clients who contacted the Housing Department for clarification and/or negotiation before their case called in court.

5.6.9 Since August 1999, the City of Edinburgh has been involved in co-ordinating a city wide rent arrears policy whereby the decision to seek decree and the remit to negotiate with tenants is restricted to each local office. It was predicted that the new policy would make an impact on the number of individuals coming to court and the role which the In-court Adviser plays in the court. In particular, it was predicted that since the responsibility of raising actions would be restricted to local offices which were not themselves responsible for taking cases into the court, actions for eviction would be raised which the court was likely to find unreasonable, should tenants be able to present their case effectively.

Advice agencies (5.5.1-5.5.13)

5.6.10 Altogether, nearly half of all clients (502) were referred to advice agencies in Phase 2. The number of clients referred to agencies in the voluntary sector doubled from Phase 1 to Phase 2 while the number of clients referred to advice agencies in the statutory sector and to the Mediation Project showed an even greater increase in number. Most referrals to other advice agencies were amongst heritage clients and defenders while most small claims and summary cause referrals were to the Mediation Project. Like Phase 1, the In-court Adviser was able to deal with most enquiries by small claims clients and by pursuers without referring them on to other advice agencies.

5.6.11 There was variation between advice agencies as to the quality and consistency of their information on the take-up of referrals, and differences between them as to the appropriateness of initiatives to monitor take-up. There was near consensus, however, as to how higher take-up rates could be achieved, namely, through more directive referrals and an appointments system. This was thought to have been more in evidence in the first months of the In-court Advice Project, when the In-court Adviser had fewer clients to see her.

5.6.12 Advice agencies also referred clients to the In-court Advice Project for information and assistance. This was particularly the case amongst smaller advice agencies, and particularly for small claims cases. Advice agency staff called on the In-court Adviser if they were unable to accompany their clients to court. They also sought advice from the In-court Adviser when they were in court, using her experience of the court and its sheriffs to assist their own business in the court.

« Previous | Contents | Next »