3. BACKGROUND TO THE REVIEW
32. Chapter 2 of the Review identifies and proposes solutions to eight key problems which it argues inhibit the achievement in Scotland of an affordable, efficient and fair civil justice system. These are as follows.
- The pressure of criminal business which delays and disrupts civil litigation, contributes to inefficiency and adds expense.
- The absence of judicial specialisation can lead to a lack of consistency in judicial decision making, exacerbated by the absence of judicial continuity.
- Large overlaps in jurisdiction between the courts, the extensive jurisdiction of a sheriff and largely unrestricted rights of appeal all combine to ensure an inefficient and wasteful use of judicial resources.
- Temporary and part-time resources may exacerbate inconsistent decision making and inefficiency in case management.
- Courts have insufficient control of the conduct and pace of litigation, with some respondents to consultation suggesting there was a laissez faire approach to rules and time limits.
- Modern information and communications technology (" ICT") offers opportunities for more affordable and efficient management of civil business which are still to be exploited.
- The system is sometimes inaccessible or difficult to understand for party litigants who will, in turn, create inefficiencies by their conduct.
- The system is rendered unaffordable to many by the cost of litigation and methods for recovering expenses.
33. It is important to acknowledge that the Scottish system of civil justice has largely served Scotland well since the last major overhaul, the passage of the Sheriff Courts (Scotland) Act 1907, and many of the problems now encountered in Scotland have also developed in other, comparable legal systems.
34. Lord Gill draws widely on this international experience in the annexes to his final report, with frequent references to solutions developed in Canada, New Zealand, Australia, Ireland, and England and Wales.
35. The Review paid particular attention to reforms in England and Wales proposing the incorporation of some of their recent innovations and rejecting or modifying others.
36. The civil justice reforms in England and Wales arose primarily from Lord Woolf's review of the civil justice system in England and Wales, published in June 1996 4. In many respects his findings - that the civil justice system was too slow, too costly and too complex and that there was a need for new, simple and simply expressed procedural rules with a view to securing an accessible, fair and efficient system - are strikingly similar to Lord Gill's.
37. As a result of Lord Woolf's review, the new Civil Procedure Rules came into force in 1999, designed to encourage the early settlement of disputes through a combination of pre-action protocols, active case management by the courts, and cost penalties for parties who unreasonably refused to attempt negotiation or consider alternative dispute resolution. There is some debate about whether the Woolf reforms have had the desired effect. In a paper for a conference to mark the 10-year anniversary of the Civil Procedure Rules, Professor John Peysner commented: "Virtually all commentators agree that Lord Woolf's vision of the new litigation landscape has been largely successful except in relation to costs." But some commentators, such as Professor Michael Zander, opposed the proposed reforms from the outset, fearing that they would have the opposite effect to what was intended, and now believe that the evidence broadly shows that, on the main issues, their fears were justified.
38. Even those who believe that the Woolf reforms are working concede, however, that the reforms have resulted in costs arising earlier in actions - so called 'front-loading'. In cases which might have settled anyway, this increases costs to parties and pressure on judicial time. Similarly, where parties are required to attempt mediation which then does not succeed, the net outcome is likely to be higher costs for the parties.
39. Lord Gill's recommendations draw on the approach in the Woolf reforms of promoting active management of cases, but are more flexible in their expectations in respect of mediation and pre-court procedure. It may be that this approach will be more suited to a smaller, less busy jurisdiction. Nevertheless, consideration and adoption of Lord Gill's recommendations on case management will require careful development of the detail.
40. Another important UK development was Sir Andrew Leggatt's report on tribunals 5, which led directly to the Tribunals Courts and Enforcement Act 2007. This legislation formalised the operation of tribunals under senior judicial supervision and a superior court of record, the Upper Tribunal.
41. Further changes to the tribunal landscape are likely to emerge as a consequence of the UK Government's plans to merge HM Court Service and the UK Tribunal Service. The implications of this for tribunals operating in Scotland will be considerable, and require to be taken into account alongside Lord Gill's recommendations.
42. Lord Justice Jackson's Review of Civil Litigation Costs 6 examined the merits of different methods of funding litigation, as well as identifying causes of disproportionate costs and methods of controlling them. This work will inform the Scottish Government's review of the cost and funding of litigation.
43. These developments are complementary to the significant constitutional reforms of the last 10-15 years, including the Human Rights Act, the establishment of the Supreme Court of the United Kingdom, and the re-establishment of the Scottish Parliament itself. These reforms have had a major impact on the nature of civil cases before the Scottish courts.
44. Substantial procedural reform in the criminal courts has also been seen with the implementation of Lord Bonomy's recommendations for High Court reform, Sheriff Principal McInnes' summary justice reform, and Sheriff Principal Bowen's recent report on sheriff and jury trials.
45. From April 2010, the constitutional reforms contained in the Judiciary and Courts (Scotland) Act 2008 have fully come into effect, including the establishment of the Scottish Court Service as an independently managed body corporate, the formalisation of Scotland's judicial hierarchy under the headship of the Lord President, and a statutory requirement for the independent assessment of candidates recommended for judicial office.
46. The Court of Session and sheriff courts are ancient and historic institutions which have adapted over many centuries to the changing nature of Scotland. There is now an opportunity to place these courts within a comprehensive modern framework of civil justice, tailored to the specific needs of Scotland's people.
Expenditure and volumes
47. Lord Gill's recommendations for the reform of Scotland's civil courts need to be considered against the scale of the tasks performed by those courts, and implemented at a time of almost unprecedented pressure on public expenditure.
48. The caseload of the Court of Session in 2009/10 was around 6,700 cases, of which around half were personal injury actions. Fewer than 300 appeals and reclaiming motions were lodged with the Inner House, of which one fifth came from the sheriff courts. This civil caseload represents approximately one half of all the cases and only one third of the time taken by the court to manage the overall caseload of Scotland's supreme courts, much of which is criminal business heard in the High Court of Justiciary.
49. The sheriff courts handled around 110,000 civil cases during 2009/10, excluding summary applications, approximately seventeen times as many as the Court of Session. In that year, 38% of the cases were ordinary causes, including personal injury cases. A further one quarter of the cases were summary causes (of which 9% were personal injury cases in 2009/10) and 37% were small claims. Over 90% of the small claims were debt actions.
50. A reasonable estimate of total public expenditure on civil justice in Scotland is £150m, of which £25m is recovered in fees charged 7.
51. The pressures on public spending are such that substantial savings will require to be found over the next few years in all of the budgets which make up this total. The Scottish Government's Spending Review is underway, and will report in November 2010.
52. Initial modelling suggests that, on their own, the structural recommendations of the Review will not substantially reduce the overall costs of running the courts and some recommendations, for example for judicial case management, would require up-front investment. The experience of England and Wales is that a move to greater judicial case management, whatever its benefits in terms of the efficient handling of individual cases, does not inevitably reduce the on-going costs to the courts or to parties.
53. Many of the Review's recommendations are worth pursuing for the improvements they will bring to the quality of the service provided in the civil courts, even if they do not result in substantial savings. Overall, though, the kind of fundamental system reform envisaged by the Review will only be possible if implementation costs are kept to a minimum, and the end-state is a system which is financially sustainable at a significantly lower level of public expenditure than now.
54. The Scottish Government believes there is scope for savings to be made across the justice system as a whole, through more efficient deployment of resources, incentivising early resolution of cases, and through ensuring cases are dealt with at the lowest level which is appropriate for the nature of the litigation. As the details of reform are worked through, it could become apparent that some adjustment to boundaries and local models of delivery is necessary to generate efficiencies and maximise access to a more effective, better system of civil justice.