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Civil justice - streamlined civil procedures
5 Our court and tribunal systems are key to the protection and enforcement of legal rights and responsibilities.
5.1 Not all disputes can be, or ought to be, resolved by negotiation between the parties involved. Sometimes the authority of the court is needed to obtain recompense for loss or injury, to protect rights or to challenge decisions and actions of public bodies. In some cases there may be power imbalances that put the parties on an unequal footing and would allow one party to put undue pressure on the other. This could arise from the relative economic positions of the parties or from the nature of the personal or business relationship between them. In other cases there may be uncertainties in the law which it is important to clarify, either because there is a lot at stake in a particular case, or because its outcome could affect a number of other cases. It is therefore vital that we have a system of courts and tribunals to provide decisions determining the rights and responsibilities in such cases.
5.2 The Executive's aim is to make sure that we have available the right structures and institutions in the form of appropriate courts and tribunals, and that these operate efficiently. Disputes which need to be resolved using a formal determinative or judicial process should be dealt with in as straightforward a way as possible, in a reasonable time and at a cost which is proportionate to the importance and value of the issues involved. Procedures should aim to focus the points at issue at an early stage, and give the court powers to ensure that cases move forward as quickly as is consistent with justice. The exercise of the determinative or judicial function is, of course, the responsibility of the judge or tribunal who is dealing with the case, and has to be exercised impartially and independently. The Executive's responsibility is to ensure that appropriate resources are made available and used in ways that provide optimum support to the judicial process.
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 the statutory responsibility for keeping the rules of the Sheriff Court under review. The Council instructs new or revised rules where it considers it necessary and submits these to the Lord President of the Court of Session, who formally makes the rules. We have supported the Rules Council to put in place a number of improvements in procedures in the Sheriff Court. One of the most significant of these was the introduction in 2001 of new rules for commercial cases; these have been put into effect in Glasgow and Aberdeen. Recent research 10 in Glasgow has shown that they are operating very effectively and that the commercial court is a valued service to its users.
5.4 We also supported the Rules Council in its revision of the Small Claims and Summary Cause Rules. New Small Claims and Summary Cause Rules were put into effect in 2002. In addition, we have provided advice and support to ensure that the rules of the Sheriff Court have been revised and updated as required to reflect the requirements of a wide variety of provisions in new legislation requiring civil court orders or appeals provisions. Examples include the new rules required in relation to anti-social behaviour orders and to support the guardianship and intervention provisions of the Adults with Incapacity Act.
5.5 We welcomed the initiative by the Court of Session to revise the rules dealing with personal injury cases in 2003 and the Sheriff Principal of Glasgow and Strathkelvin's more recent personal injury pilot court.
5.6 The Vulnerable Witnesses (Scotland) Act 2004 will, when it is fully brought into effect, ensure that vulnerable witnesses in civil as well as criminal cases are given the benefit of special measures to assist them in giving evidence.
5.7 We are determined to ensure that our system of civil justice provides fair and effective procedures for the enforcement of legal obligations once they have been determined by the courts. Without such procedures court orders would have no value. The Debt Arrangement and Attachment (Scotland) Act 2002 introduced an alternative procedure to that of poinding and warrant sale, namely attachment and exceptional attachment orders.
5.8 Many legal problems and disputes are dealt with not by the ordinary courts, but by specialised tribunals set up to deal with specific kinds of cases. Many of these involve areas of law which are reserved to the UK Government, such as social security, employment law or tax. We took part in the UK Government's review of the systems of tribunals which deal with these kinds of case and we have worked with the UK Government to ensure that the proposals for a GB-wide tribunal service, which have been brought forward by the UK Government in the Tribunals, Courts and Enforcement Bill, will work effectively within the Scottish legal system. A Legislative Consent Motion regarding that Bill was passed on 31 January 2007 and we support the work of the Administrative Justice Steering Group, chaired by Lord Philip, in looking at the administrative justice system in Scotland.
WHAT WE ARE DOING
5.9 In February 2006 we published a consultation on the unification, appointment, removal and management of Scotland's judiciary, containing proposals to strengthen judicial independence and give the judges greater opportunities to secure the efficient and effective disposal of business in the superior courts and the sheriff courts. We are committed to placing the Judicial Appointments Board on a statutory basis and to carrying out the other proposed reforms. At the time of publication of this report, we are in close consultation with the judiciary about a number of issues related to the publication of the consultation document. Ministers' present intention is to make as much progress as possible with a draft Bill on the judiciary which would be fit for introduction by the new Administration, if it were so minded, shortly after the election in May 2007.
5.10 The report of the Agency Review of the Scottish Court Service ( SCS) carried out by Douglas Osler CBKSG, was published in February 2006. The Minister for Justice has agreed the action plan which was prepared by the SCS in response to the Agency Review recommendations. The SCS Customer Satisfaction Survey for 2006 reported good overall levels of satisfaction with SCS services and facilities among both professional and non-professional court users, with over three-quarters reporting that they felt satisfied overall - a 77% satisfaction rating, against a corporate target of 75% in the SCS Corporate Plan. Around 5% of customers expressed some degree of dissatisfaction.
5.11 We continue to support the Sheriff Court Rules Council in a range of projects. These include its consideration of the place of alternative dispute resolution in the court process and its liaison with the Court of Session Rules Council on the same issue; the extension of the use of information technology in Sheriff Court process; its consideration of whether the type of rules used in the commercial court should be extended to be used more broadly in other types of case; and consideration of whether to introduce rules for personal injury cases similar to those which we understand are working successfully in the Court of Session.
5.12 In the European context, we are involved in a number of EU initiatives which aim to make it easier for European citizens to pursue civil claims throughout the European Union. These include European initiatives in relation to small claims, orders for payment, enforcement, insolvency, intellectual property and parental responsibility.
5.13 The Bankruptcy and Diligence etc. (Scotland) Act 2007 modernises the law relating to bankruptcy and introduces new court procedures and administrative arrangements aimed at making the law more transparent and more effective for creditors while affording appropriate protection to debtors. The Act also makes further improvements to the law relating to the enforcement of civil obligations by creating the new diligences of land attachment, residual attachment, money attachment and interim attachment, and reforming existing enforcement procedures such as arrestment of funds or goods, earnings arrestment and inhibition. It also puts in place a new system for regulating the professions of Messengers-at-Arms and Sheriff Officers, unifying them into a single profession to be known as Judicial Officers.
WHAT WE WILL DO
5.14 We will support Lord Gill to undertake a comprehensive review of the structure, jurisdiction, procedures and working methods of the civil courts in Scotland. We will provide appropriate administrative and analytical support to the review team to enable it to carry out its work effectively within the time scales to be agreed. Chapter 3 of this paper sets out in more detail the background to the decision to set up the review and the policy principles which will underpin it.
5.15 In relation to inquiries, we will consult in March on draft rules for Scottish inquiries under the Inquiries Act 2005, with the aim of ensuring that such inquiries operate as efficiently and effectively as possible.
5.16 There are two significant developments in civil justice at the international level which we are taking forward in conjunction with our European partners. These will promote improvements to the international system for the recovery of maintenance payments, through the updating of the Hague Convention on Maintenance. We will also, in conjunction with other EU member states, ratify the new Hague Convention on Commercial Choice of Court Agreements, which will protect choices made by businesses as to the jurisdiction in which they 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 civil obligations and the regulation of the professions of Messengers-at-Arms and Sheriff Officers.
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