This is the full text of Lord Gill's Scottish Civil Courts review introduction, in which he summarises the proposals outlined in full in his two-volume report, published on 30 September.

Thank you for coming here this morning for the launch of the Report of our Review. We are grateful for the interest that you have shown in our work.

This morning I presented the Report of our Review to Kenny MacAskill. It is the first systematic review of the structures and procedures of the Scottish civil courts in modern times.

We are proud of Scots law and our independent legal system; but what is the point of that if the machinery of justice in Scotland does not work? Our study has satisfied us that civil justice in Scotland is failing. It is failing to deliver justice to the citizen expeditiously, economically or efficiently. Our structures and procedures are wholly unsuited to modern conditions. They inflict needless costs on the public purse, on the Scottish Legal Aid Board and on individual litigants at every level. The system’s delays are notorious and in some cases scandalous. Its procedural inefficiencies operate against the interests of justice.

Those working within the system may seldom have occasion to question its basic principles and assumptions. But if you stand back from the fine detail of Scottish civil justice, as we have done, its fundamental flaws become obvious.

Our aim has been to ensure that the Scottish civil courts provide the public with a system of civil justice of the highest quality. We have sought to make recommendations that will produce decision-making in the courts that is prompt and efficient, and is delivered by procedures that are appropriate to the nature of the dispute. But efficiency in procedure is only a means to an end; namely, the making of decisions that are fair and just and that inspire public confidence in the law rather than distrust and cynicism.
From these major aims, there follow some more specific priorities such as the accessibility of justice to the individual litigant; sensitivity to the needs of those who use the system; the avoidance of litigation wherever possible, and the encouragement of settlement of litigations once they begin. A system such as we now propose will operate effectively only if it is properly resourced.

Our remit requires us to review “the provision of civil justice by the courts in Scotland”; but a review of this nature would have been pointless if we had been precluded from taking account of the impact of criminal business upon the civil courts. The growth of criminal prosecutions on indictment, and the demands of the criminal system upon the available resources, constitute one of the major problems besetting our system of civil justice. Our remit entitles us to consider the relationship between the civil and criminal courts. On this aspect of our remit we have certain proposals that do affect the criminal courts.

Anyone familiar with other jurisdictions in the English-speaking world will know that Scotland is noteworthy, and perhaps unique, in having no proper structure of courts. A developed system of law requires a proper hierarchy of courts. It is only with such a hierarchy that every case can be litigated at a level that is appropriate to its degree of importance. If a case is litigated at any higher level than that, there is inevitably a waste of public resources and the infliction of needless expense on the litigants.

The fundamental weakness in our court structure is that the civil jurisdictions of the Court of Session and of the sheriff court largely overlap, with the result that over a wide range of litigations the pursuer has the choice of litigating in either court, regardless of the importance or the complexity of the case. Moreover, the extensive civil jurisdiction of the sheriff court comprehends minor litigations that should have no place in a sheriff’s workload. These litigations cause disproportionate expense and deter small claimants who have worthwhile claims to pursue, thereby denying them access to justice.

It is obvious to us that jurisdiction should be rationalised as between the Court of Session and the sheriff court and that there should be an efficient and accessible third judicial level for the prompt and inexpensive resolution of minor claims.

A proper hierarchy of courts also requires that there should be a logical and coherent appellate structure. At present, any litigant in the sheriff court in all but the most minor claims, has a virtually unrestricted right of appeal to the Inner House. The result of that is that numerous appeals of little or no merit are brought to the Inner House. This makes the work of the Inner House wasteful and inefficient; and is prejudicial to the interests of those who have well-merited appeals to make. Moreover, this unrestricted right of appeal raises a serious issue of public confidence in cases where the expenses of the appeal are out of all proportion to the sum at stake.

We therefore consider that the Court of Session should be available to first instance civil litigation only where the importance of the case justifies its being pursued in the highest civil court in the land. At present much of the business of the court is taken up with minor civil claims that could be dealt with competently in the sheriff court and which, in our view, ought to be dealt with there.

We therefore propose a major transfer of jurisdiction from the Court of Session to the sheriff court. We propose that all minor civil litigation in the sheriff court should be transferred to a third judicial level within the sheriff court to be administered by a new class of judicial officers to be known as district judges.

In association with these recommendations we propose that the district judges, in addition to having a civil jurisdiction, should deal with prosecutions in the sheriff court that are brought under summary criminal procedure. This proposal does not affect the existing jurisdiction of the justices of the peace.

Our major proposals on this aspect of our Review are therefore as follows: Firstly, that the privative (i.e. exclusive) jurisdiction of the sheriff court should be raised from £5,000 to £150,000. Second, that all small claims, summary cause actions, housing repossessions, children’s hearing cases and minor family disputes should be dealt with by the district judges who will have concurrent jurisdiction with sheriffs in family cases. Parties will have the option of litigating locally or before a specialist family sheriff.

The effect of these proposals will be, in our view, that the Court of Session can re-establish itself as a specialist court dealing with cases that deserve to be in it, dealing with them with a high level of judicial expertise, and dealing with them efficiently, promptly and economically.

By being relieved of the burden of minor work, both civil and criminal, the sheriffs will deal only with civil litigations that are appropriate to their knowledge and expertise and in the criminal sphere will concentrate their efforts on prosecutions on indictment in cases that are appropriate to their recently increased sentencing powers.

These transfers of jurisdiction will be accompanied by proposals for increased judicial specialisation at every level, and in particular the appointment of a number of specialist sheriffs in every sheriffdom in areas such as commercial, personal injury and family law.

Most of the minor litigations that are occupying the time and resources of the Court of Session are actions for damages for personal injury. These actions are a special class. They are dealt with, in the main, by specialist solicitors and counsel and under special procedures. These procedures have expedited the progress of personal injury actions in the Court of Session in recent years; but, despite that, there remains the objection that most of these litigations should have no place at the highest judicial level in any court system.

Nevertheless, we recognise that there are advantages in there being a centralised court specialising, as the Court of Session in effect now does, in personal injury claims. We therefore propose the creation of a specialist personal injury court, having jurisdiction throughout Scotland, based at Edinburgh sheriff court. Pursuers will have the choice between suing in that court or in their local sheriff court.

We have also come to the view that the institution of civil jury trial should be retained. To make that view effective, we propose that the existing procedures for civil jury trial should be extended to the sheriff personal injury court, but to that court only.

These proposals will not affect actions relating to injuries of maximum severity and complex medical negligence claims which will continue to be competent in the Court of Session under our recommendations.

Lastly, we propose to eliminate the rigidity of the present jurisdictional rules by providing for extensive powers of transfer of actions between sheriff courts within sheriffdoms, between sheriffdoms and between the Court of Session and the sheriff court.

Our insistence on the need for a proper hierarchy in civil justice is also reflected in our recommendations for the appellate structures of the courts. It is obvious that there are many appeals that should not be dealt with at the level of the Inner House. We therefore propose that there should be a national Sheriff Appeal Court to hear all civil appeals from the district judges and from the sheriffs, with a restricted right of a further appeal to the Inner House.

It seems to us too that since the district judges would acquire a summary criminal jurisdiction under our proposals, it would be logical and expedient that criminal appeals in summary criminal cases should go to the sheriff appeal court too.

We have benefited from the advice and expertise of Lord Penrose, who has conducted a careful and thoroughly researched study into the procedures of the Inner House. We have endorsed and adopted Lord Penrose’s proposals.

Before leaving the question of structures I should mention the question of part-time justice. We acknowledge the valuable contribution that has been made by part-time sheriffs and temporary judges in recent years. Without them, the system would have broken down completely. But we are opposed to the idea that part-time judicial resources should constitute a normal element of the judicial complement. In our view part-time judicial help should be called upon only in emergency, if at all. If there is to be a continued use of part-time and temporary members of the judiciary on that basis, we consider that it is not appropriate that such members should be drawn from the ranks of current practitioners.

I turn now to the procedures of the court. In the course of our Review it has become apparent to us that prolonged and excessive delay is common in the civil courts. The responsibility for these delays is in some cases that of the parties or their advisers. In others, it is the responsibility of the court. Our primary proposal in relation to procedure is the introduction of effective case management by which the court will control the conduct and the pace of litigation and have power to impose effective sanctions on parties who conduct litigations unreasonably or negligently, or who fail to comply with the rules of the court. With the exception of personal injury actions, we propose a docket system in which responsibility for the supervision of a litigation will be assigned to a particular judge or sheriff from the outset.

Our proposals for enhanced case management powers include proposals for the early disclosure of documents, the greater use of witness statements in place of oral evidence, abbreviated written pleadings and the appropriate use of expert evidence, the effective and realistic estimation of timetables by the parties, the greater use of written submissions and the imposition of sanctions for procedural default. In particular, we propose that in cases where a practitioner causes needless expense by reason of inefficiency or where a party is guilty of an abuse of process, the court should have power to make an award of expenses against that person. We make proposals for restraining orders against parties who persist in conduct that amounts to an abuse of process. We also make proposals for the conduct of procedural business by letter, e-mail, telephone or video conferencing.

We recognise that in many cases needless delay is caused by judges and sheriffs themselves. We were surprised in the course of our review by the extent of indignation among litigants and their advisers at the prolonged delays in the delivery of written judgments. We propose that there should be an on-line register of cases in which judgment has been outstanding for more than three months and that in each such case the judge or sheriff concerned should give, on-line, reasons for the delay for so long as it continues.

For cases of a value of £5,000 or less we propose a single new set of rules, to be called “the simplified procedure,” based on an interventionist approach in which the court will identify the issues and specify what it wishes to receive by way of evidence or argument. We also propose that the Scottish Government should develop and extend in-court advice services, including specialist help in housing matters, as part of a broader strategy to improve the provision of publicly funded civil legal assistance and advice generally. We also propose the increased use of IT and make detailed recommendations on that subject.

We do not seek to abridge the right of the individual to conduct his own litigation. Nevertheless it has to be recognised that party litigants do on occasion seriously disrupt the business of the court. Our proposals for case management should ensure that the conduct of cases by party litigants is under more effective supervision and control. To meet the needs of party litigants we propose, among other measures, improved on-line information for the public, the development of in-court advice services and the right of party litigants to appoint lay representatives, known in England as McKenzie Friends, to speak on their behalf.

I turn now to the question of judicial review and public interest litigations. We consider that the current law on title and interest to sue is unduly restrictive and that there should be a new single test; namely, whether the petitioner has demonstrated a sufficient interest in the subject-matter of the proceedings. So that petitions for judicial review should be brought promptly, we propose that the right to bring any such petition should be cut off after a period of three months. We recommend that every application for judicial review should be subject to the court’s granting leave to proceed, the test being whether the petition has a real prospect of success.

In cases raising significant issues of public interest we recommend that the court should have power to make special orders as to expenses; for example, an order made at the outset or in the course of proceedings to the effect that the petitioner would not be liable for the expenses of the action, even if unsuccessful or that the expenses of the successful party should be capped at a particular sum.

One of the major gaps in access to justice at the moment is the absence of a proper procedure for dealing with multiple claims that give rise to common or similar issues of fact or law, such as litigation arising out of a mass disaster or liability for defective products. We make proposals for the introduction of multi-party actions and make detailed proposals as to how the procedure should work, including a proposal that special funding arrangements for multi-party actions should be under the administration of the Scottish Legal Aid Board.

I come now to another of our major proposals – the establishment of a Civil Justice Council for Scotland.

Over the years civil justice reform has been achieved in a piecemeal and ad hoc fashion. It is that approach that has necessitated this Review. We are of the opinion that the jurisdictions and procedures of the civil courts should be subject to continual rather than sporadic review and that there should be a permanent Civil Justice Council for Scotland with responsibility to oversee the working of the system; to consider whether it is making justice accessible and efficient; to monitor problems as they arise and to devise solutions; to carry out or to commission research in this jurisdiction; to learn from the practice of other jurisdictions, and to keep the rules of court relevant and up-to-date.

I now turn to the question of the cost and funding of litigation. When we embarked on this exercise it was obvious to us that this was a major area of concern; but as we explored the question further, it became increasingly apparent to us that it was a major exercise in itself. If we had given this topic the detailed attention that it deserves, it would have occupied a disproportionate amount of our time and skewed the focus of our recommendations. At the same time in England a major study was initiated under the chairmanship of Lord Justice Jackson. We therefore decided, regretfully, that it was beyond our resources to carry out an investigation that would do justice to the subject. We have therefore recommended that at an early date the cost of litigation should form part of the remit of the proposed Civil Justice Council for Scotland and that meanwhile the Scottish Government should set up a Working Group to look at the whole question of expenses and speculative fee arrangements. We recommend too that the Scottish Government should explore with insurers the scope for improving public awareness of legal expenses insurance.

We have however made detailed recommendations on the recovery of expenses, on the question of the role and remuneration of auditors and on the streamlining of the system for taxing accounts.

In recent years mediation and other forms of alternative dispute resolution have attracted considerable attention. We see that there is value in alternative dispute resolution and we recognise that when ADR is undergone successfully, it relieves the courts of some of their burden. We therefore make proposals in relation to that such as the provision of a free mediation service for small claims. However that we do not consider it right that recourse to ADR in any of its forms should be a compulsory first step in any litigation. In our view, every citizen’s right of access to the courts of law is a matter of constitutional principle.

In this review we have not embarked on the pursuit of the ideal. We have not made revolutionary proposals that would be unlikely to pass into legislation. We have taken the system as we find it and endeavoured to formulate pragmatic proposals which can be implemented without undue delay or difficulty and which will direct resources to where they are most needed.

On behalf of the Board of the Review I express my thanks to Kenny MacAskill for having supported our work so enthusiastically and for the encouragement that he has given to us. I thank too the 200 or so individuals and organisations who responded to our Consultation Paper. Their contributions were invaluable in guiding our thinking. I thank our Policy Group, who gave freely of their time and expertise to the work of the Review in a true spirit of public service. I also thank the Review Team whose commitment to this project has been quite extraordinary. Forgive me if I mention in particular the outstanding work of the Secretary to the Review, Lindsey Nicoll. Lastly, I extend my warmest thanks to my colleagues Lord McEwan, Sheriff Principal Taylor and Sheriff Stephen, whose wisdom and experience have informed all of our work.