It’s large. It’s blue. It’s as fat as a phone book and coming to a court near you. Do you have your copy of Lord Gill’s Report of the Scottish Civil Courts Review? It is going to rewrite law from undergraduate level all the way to the bench. Steven Raeburn was there to sniff the crisp new pages as they were opened for the first time.


Brian Gill was certainly in a relaxed mood in the Signet Library as he quietly unveiled the largest and most significant review of the civil courts in their history. And he didn’t disappoint, outlining a root and branch proposal of reform that he and his review board members specifically plea to Holyrood to implement in full, rather than piecemeal, or expediently. After delivering a lengthy and thorough summary of the review’s conclusions to an audience of senior legal figures -including Deputy Keeper of the Signet Caroline Docherty, Robert Carr of Anderson Strathern, President Ian Smart and reporters from the Herald and Scotsman - he called for any questions, and conceded he didn’t quite know how to take the stunned and awkward silence that followed. For my part, I thought I had better read the review before trying to find the gaps and, to Gill’s credit he said so much in his 20 minutes or so of introduction, he seemed to have pre-empted any initial queries. Either that or he had blown us all into the back of our seats in submission with the sheer scale of the proposed reforms.

“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,” Gill said.

Harsh stuff. But painful truth should always be welcomed, however difficult it may be.

“Our structures and procedures are wholly unsuited to modern conditions. 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.”

The two volumes detailing those flaws exceed 600 pages in length and take a lot of digesting. There wasn’t much time between the publication and press day to fully absorb the outcomes of the report, but The Firm asked some leading figures in the land of civil law to give us their first impressions of Lord Gill’s conclusions, and asked them to assess their likely impact and effectiveness. Time will tell if the conclusions of the review will be implemented as Gill intended. As he conceded, the review group did not have the luxury of starting with a blank sheet of paper, and their options for reform were necessary incremental, rather than revolutionary.
“We have not embarked on the pursuit of the ideal. 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.”

So, what did you make of it? Here, some of Scots’ laws leading figures provide their first impressions.


Gilbert Anderson, Andersons.
Solicitor of the Year 2009

The Report of the Scottish Civil Courts Review is of massive importance to improved access to justice for all people in Scotland. I am greatly encouraged by the key recommendations contained in the Report relating to the meaningful increase in the privative jurisdiction of the sheriff court, coupled with specialisation in that court. I believe implementation of the key recommendations will improve access to our civil courts, and indeed the quality of justice dispensed therein.

Lord Gill highlights the critical importance of the funding of civil litigation. In my view it is of vital importance that all people in Scotland should be able to benefit from the undoubted improvements in our civil justice system, which will flow from the early implementation of many of the Review’s recommendations.

It seems to me that we must persevere with seeking to achieve a situation where genuine litigants have “equality of arms” when conducting their cases. I would urge immediate and robust research into the fairest way of achieving funding arrangements which are consistent with justice. In that context I believe that we must learn from the mistakes made in England and Wales through the introduction of conditional fee arrangements and referral fees, which I believe have seriously damaged the reputation of the English legal system. It seems to me that there is little point in having an efficient civil court structure and system if it is not affordable to the overwhelming majority of the people in Scotland. A litigation funding system incorporating equality of arms and real recovery of awards of party/party expenses is essential.

It is apposite to highlight the key issues in the remit given to the Review, i.e. improved access to justice and the resolution of cases without undue delay at proportionate cost. From anecdotal and other evidence which I obtained via consultations I carried out as Dean of the Royal Faculty and Regional Representative for FOIL in Scotland during Lord Gill’s consultation process, it seems very evident that our civil court system suffers from many serious problems of delay and other causes of unnecessary expense. This strong impression is reinforced in the findings of the Review. For example, low value non-complex cases being raised in the Court of Session, lack of specialisation at Sheriff Court level and the priority and pressure of criminal business.

We are rightly proud of Scotland’s flexible mixed system of law. Indeed, I believe that our system is highly respected by other jurisdictions. However, a system of law is only of relevance if it can have practical application. The application of Scots law in our own country is being hindered by the creaking fabric of our existing civil court structure. The Gill recommendations, if implemented, will go a long way towards repairing that structure and thereby allowing Scots law to operate effectively.

In my view the combined recommendations for increasing the privative jurisdiction of the sheriff court from £5,000 to £150,000 and the introduction of specialist sheriffs will in themselves undoubtedly improve the efficiency of the sheriff courts through specialist judges working with specialist practitioners, aided by procedural rules which will genuinely ensure the expeditious progress of cases. The recommended powers of transfer of cases between and within sheriffdoms will allow flexibility which ought to reduce delay. Specialisation by the Bar and Bench will enable the early identification of the key factual and legal issues in dispute. The “de-cluttering” of the Court of Session of non-complex low value cases will also enable proportionate time and expense to be given by that court to high value cases of complexity and novelty. This in turn will allow the law to be fully and properly developed and for guidance to be given to the lower courts.

The Scottish Government clearly has a laudable and ambitious vision for our legal system in Scotland being widely recognised by other jurisdictions as a place where major disputes from other jurisdictions can be resolved fairly, effectively and at reasonable cost. In other words Scotland should seek to be the jurisdiction of choice. If this worthy aim is to be achieved then in my view a starting point must be to demonstrate that in addition to the expertise of our judges and the Faculty of Advocates the necessary capacity is there to deliver what is required by potential litigants, particularly commercial litigants.

Litigation ought to be a last rather than a first resort for dispute resolution. The introduction of compulsory pre-action protocols in personal injury cases should help towards reducing unnecessary and premature litigation. The greater use of IT, coupled with case management/case flow management where appropriate should also improve the expeditious progress of cases.

The dilemma of how to balance effective disposal of both criminal and civil business is a difficult one. Clearly one solution would have been to recommend the adoption of a system of separate criminal courts/judges and civil courts/judges. Scotland is of course a relatively small jurisdiction and on reflection I think the Review has got the balance right. As I see it within their recommendations a number of sheriffs could be specialists in criminal cases and in reality would be spending almost if not all their time on such cases. In this context I think the recommendation for the creation of a third tier court (the District Judge) makes sense. In the same way that de-cluttering the Court of Session of low value cases will enable that court to focus on complex/high value cases, the District Judges’ very wide remit, embracing not only all summary crime but also pretty well all civil cases across the spectrum of civil law with a value up to £5,000, will allow sheriffs to devote their time to serious crime on indictment and civil cases of significant value and/or complexity.

All of this is of course entirely in keeping with one of the key issues contained in the remit to the Review, namely, proportionality. It seems to me that there is a need to balance what might be described as “pure justice” with expediency in low value/non-complex cases and this is reflected in the Review’s recommendation that the District Judge will be able to take an interventionist approach. It does strike me that the work of the District Judge will cover a very broad canvas. He/she will require to have insight into an extremely wide range of law covering personal injury, social housing, repossessions, employment, contract, consumer credit, property and some family law. The need for this very wide range of knowledge is perhaps balanced by the value ceiling of £5,000. District Judges may have to ensure that they have more than just a basic knowledge across a wide range of law. There could almost be a case for specialisation within the work of District Judges.

I think the concept of a Sheriff Appeal Court makes sense. This should also free up the Inner House of the Court of Session to focus on complex cases. I also agree that within the system there should be flexibility with power to remit cases upwards. For example, a case with a very low value but with a novel point, such as Donaghue v. Stevenson, could be remitted, if deemed appropriate, to the Court of Session.

The recommendation for the creation of an all Scotland specialist personal injury sheriff court is interesting, as is the suggested location thereof! It seems to me that this issue is inextricably linked to the controversial issue of civil juries. Having thought further about this I remain unconvinced that the retention of civil juries in personal injury cases is conducive to consistency, coherence or predictability, all of which I feel are essential components of a civilised legal system. Juries can of course be notoriously unpredictable. Legal advisers for each side in a dispute ought to be able to provide meaningful advice to clients as to what their claims are worth. This should assist with fair and consistent settlements. Although there is a perception that juries award higher sums than judges there is also evidence that the reverse can occur. Juries can also be parsimonious. A system involving judges referring to previous awards by judges encourages consistency. It seems to me that if civil juries are retained this will encourage litigation.

I note that the Review recommends that civil juries should only be competent in the Court of Session and in the specialist all Scotland personal injury sheriff court. I am not at all clear on the rationale for this. If juries are to be retained for personal injury cases surely they should be available in all sheriff courts, or at least in these which have specialist personal injury sheriffs. The rationale behind the recommendation for the specialist all Scotland personal injury sheriff court being located within Edinburgh Sheriff Court is not clear. I appreciate that very little personal injury work (over £5,000) is handled in Edinburgh Sheriff Court. Almost all such cases are currently raised in the Court of Session.

I greatly welcome the Review’s recommendation for the establishment of a Civil Justice Council for Scotland which should enable harmonisation and consistency of procedures in the Sheriff Court and Court of Session to be achieved in a coordinated manner. As I see it the Council would in effect carry out on an ongoing basis what the Gill Review has done during their two years of consultation and deliberation.

One of the important messages in Gill is the need to use existing resources much more effectively. Another strong message is the urgent need for careful consideration and thorough research into litigation funding. Let us hope that both of these messages are acted upon by the Scottish Government with all due haste.

Brian Castle,
Digby Brown LLP

Digby Brown was a major contributor to the Scottish Civil Courts Review undertaken by Lord Gill during the consultation period and we welcome the thorough and comprehensive review now presented. We are now considering in detail the specific recommendations and their likely impact on persons seeking justice through the Scottish Courts.

“We are pleased that the review accepts that the Coulsfield reforms have transformed the way that personal injury cases are dealt with in the Court of Session for the better and so welcome the proposals for Scotland-wide specialist Personal Injury Sheriffs and a Specialist Personal Injury Sheriff Court in Edinburgh. These will work well alongside the imminent implementation of Coulsfield reforms into Sheriff Court procedure. We also welcome the review’s recognition that personal injury cases deserve particular consideration, distinct from general civil Court business.

We are not persuaded that the case for raising the privative jurisdictional limit to £150,000 for Court of Session business is convincingly made out when considering the types of cases which would then be excluded. We also have concern about the effectiveness of the (welcomed) Sheriff Court reforms if a significant number of personal injury cases are excluded and placed in a simplified procedure before district judges. It seems contradictory to recognise the special case for personal injury claims, yet propose that a number of these are placed within a simplified procedure designed for general civil cases which may not be suitable to personal injury claimants seeking proper redress.

Julie Hamilton,
MacRoberts LLP

Well, where do I start?! The Review is thorough as you say, wide ranging and well written. I think the main problem is going to be funding the numerous recommendations. How many of them will actually see the light of day?

The proposed increase to the privative jurisdiction of the sheriff court is, in my opinion, an excellent idea, as too many low value, personal injury actions are raised in the Court of Session. For example, we recently defended a Court of Session personal injury case in which the pursuer was suing for £15,000 - the case actually settled for £2,000, yet the account of expenses is coming in at £6-7,000. How do you explain that to your client? In my experience, getting the scale of expenses modified in the Court of Session is very difficult, so this proposal would go some way to addressing the problems associated with such litigation, as well as freeing up the supreme court to deal with major litigations. However, it took almost 20 years to increase the exclusive jurisdiction limit from £1,500 to £5,000 so your guess is as good as mine as to how long it might take to increase it to anything like the proposed figure of £150,000.

I also think that the whole system of expenses needs to be overhauled, and some of the recommendations try to address some of the current problems. The cost and funding of litigation is a huge concern to many clients, and recoverability of expenses. We tend to say that, as a general rule, up to 50% of actual costs incurred might be recovered in a commercial case. That is a substantial shortfall, and is difficult for a client to understand and accept if they win. So, the recommendations to increase the block fees for pre-litigation work and proof preparation are welcomed, but I think the judicial tables need to be amended further to try to address the gap between “party and party” and “agent and client” expenses in commercial cases. I’m not in favour of full recovery on an “agent and client” basis, but at the moment the shortfall is too large.

I could go on – there are loads of other good ideas, such as judicial case management, telephone case management hearings, use of email, pursuer’s offers, etc. Let’s see what the Scottish Ministers do.

Kim Leslie – Digby Brown, and convenor of the Law
Society’s Civil Justice Committee

One of the main themes of Gill’s review is that business ought to be directed to the lowest level competent to deal with it.
There is likely to be debate about what business ought to be directed to these Courts but the principal of a third tier, I believe, is a good one, and was in the Law Society’s response to the Consultation.

The appointment of specialist Sheriffs will make a difference in predictability of outcomes. It will improve confidence in their ability to deal with cases expeditiously and consistently. The Law Society has been calling for this for some years.

Judicial case management in cases will give judicial ownership of a case. This is likely to result in less delay and improved efficiency. The adjudicator will go through the journey of the case and will be responsible for moving the case forward to resolution. Lord Gill has recognised that the existing procedure for personal injury cases which manages the flow of the case is working well and should continue.

The increased use of telephone conferences or video conferences to deal with procedural aspects of the case is an efficient use of resource and just makes sense. It is a long overdue modernisation.

£150,000 is an enormous leap from £5,000. There has been no criticism of the judicial output from the Court of Session, which is considered a centre of excellence. Lord Gill’s position is that judicial decisions are being made at a needlessly high level. However, Lord Gill himself stresses that his proposals ought not to be cherry picked but will work only if the proposals are implemented more or less as a whole to produce viable alternatives to the centre of excellence. Those include the specialist Personal Injury Sheriff Court to be based in Edinburgh.

Bill Aitken MSP, Convener of Holyrood Justice Committee

Lord Gill’s recommendations will require to be developed before legislation is in place but he and his colleagues have brought forward interesting and exciting proposals.

Many cases going to the Court of Session can be adequately dealt with at the Sheriff Court. Gill makes this very point although there is a provision for cases of limited value but important legal principle to go to the Division. Cases like Donoghue v Stevenson do not occur every day and it is better for litigants and for the public purse that these cases are resolved locally and speedily.
Specialisation is vital. We should build upon what has already happened in Glasgow where specialisation particularly in commercial and family law has worked well.

The suggestion of a third tier Judge is sensible and would simply be an extension of the Stipendiary Magistrate system which has long operated in Glasgow in tandem with lay justice. This type of Judge can deal adequately with small debts and housing and education issues as well as summary crimes.

It is also eminently sensible to increase case management and the docket system allocating each case to an individual Judge from start to finish will minimise delays. We also need to know the reasons for any lengthy delays in judgement.

We need to use technology better. There are too many unnecessary hearings and video and telephone conferencing are now an accepted part of modern business life. The law should be no different.

Whilst as a Glaswegian I am cautious of the legal system being too Edinburgh centric there is a clear case for a centralised Personal Injury Court, although there will have to be some reassurance provided that the resources devoted to this are adequate.
In all Lord Gill and his colleagues have presented a document which has far reaching consequences but which provides a very real way forward. The debate now begins but the status quo is not an option and politicians and the profession must embrace the challenges which the report presents.

Robbie The Pict

The title of Chapter 11, “Access to Justice for Party Litigants”. should be declared an oxymoron. Before admitting that there is indeed a need for change, the report complains that “there are a few who actively abuse the court process”. Come, come, the Courts are old enough and ugly enough to deal with anyone ‘actively abusing’ the Court process in any real sense. As a person whose recent criminal trial and appeal involved citing statute in detail (thus confounding Judges who were plainly not up to speed with the topic) and whose research and thoroughness was dismissed as ‘unacceptable’ behaviour, I may have to declare partiality, but that may be the very reason I have been asked to comment.

Yes, I agree with the chapter’s primary conclusion that there needs to be change to improve access to justice for party litigants. That means accepting that ‘access to justice’ at present is poor. Repair therefore needs to be swift. At the moment the Scottish Courts would fail an external inspection from top to bottom. Try running a defence which claims that there is ‘no case to answer’ because a public authority has failed to comply with either statutory or Convention requirements. Take that defence from a Justices of the Peace Court to the Privy Council, without any legal aid, and you will get a true picture of Scottish ‘justice’ in practice. It should be a part of any would-be lawyer’s practical examination. There is no dedicated Court of Appeal at the top and no discipline of any ill-informed amateurs, certainly not by an acquiescent and sometimes power-mad Clerk of Court, at the bottom. The political influence in the appointment of Judges remains of concern and the pre-judgment of merit made by the Scottish Legal Aid Board is directly threatening. ‘Realistic prospect of success’ should be strictly a matter for Courts to decide, by any new and early means necessary, not for anonymous figures at SLAB whose partialities are unknown and therefore suspect.

It is fundamentally correct to state that “it would always be in a litigant’s best interest to have expert legal advice and representation”. However legal advice comes in two principal sub-divisions: procedure and direction. The first is the province of Court officials, from the security guard to the clerks; the second is legally knowledgeable advice about what is possible in law. It must be hammered home to all clerks that procedural possibilities are public property and must be identified politely and patiently. That is one part of their job for which the public pays them. Professional advice on choice of avenue and possible representation becomes an issue only later.

The resistance in the report to ‘Mackenzie friends’ is interesting. Talk of ‘incompetency’, ‘careful control’ and ‘exceptional circumstances’ smacks of protecting a jewel-encrusted chantie. Persons who are otherwise confident, able, articulate and of worldly demeanour can lose all these qualities in the artificial ‘Theatre of Court’ (known to the North American Indians as the ‘Halls of Chance’). It is patently more just if apprehensive litigants are able to be represented by someone they trust to convey their arguments. The control a Court might have over someone who might also be one of its ‘officers’ is potentially threatening and it is not unreasonable to remember that one cannot serve two masters.

The concession recommending that “a person without a right of audience should be entitled to address the court on behalf of a party litigant,” quickly qualified with “but only in circumstances where the court considers that such representation would help” and “whether such a person would be of assistance would be at the discretion of the court”, “the court should be allowed to refuse …withdraw its approval at any time…the court’s decision should be final and not subject to appeal” demonstrates such resistance as to render the grant practically worthless. It also demonstrates a serious obstruction to the title of the chapter ‘access to justice’. Courts should be able to look after themselves by now. If any well meaning friend, Mackenzie, Macdonald, Reid or Robertson, is trying his best to secure justice then let him proceed with a judicial attitude of tolerance and compassion, but keep them on the rails of judicial propriety. Judges should not use their own perhaps difficult apprenticeship as a basis for sneering at others and should not play ‘closed shop’ or elitism. Just because a person has not elected to make a career out of law-mongering, or chooses not to hire a lawyer, does not mean he should be ‘taught a lesson’. That is no more than upper-class bullying and is to be despised.

Eric Baijal
Drever and Heddle

I generally welcome the review. I think its fundamental conclusion that whole scale reform is required, is obvious to anyone practising in the civil courts. There will clearly be details and difficulties to be resolved. However, I believe that most of the stake holders are really committed to creating a civil justice system that Scotland can be proud of (and in particular one that attracts cases rather than drives them out). The question that hangs over the review, is whether government will now engage with stakeholders and begin the process of implementing recommendations.

Lord Gill is explicit in the report that the easy gains cannot be picked out at the expense of more costly and root and branch changes. However, the Justice Secretary’s initial response already seems to be mentioning the budget restrictions. In fairness, we will have to see what proposals are brought forward next year. I believe very strongly that piece meal reform should be avoided; the Scottish Goverment need to think about whether Civil Justice is a real priority.

I think it would be hard to disagree with the concerns about use of part time resources. However, implicit in successful reform of the system is surely the fact that there will be a consistent quality of judges. What will the career path to being a Sheriff now be? It strikes me that an appointment as District Judge (depending on salary set) may not be an attractive stepping stone to many candidates who would be good Sheriffs. A District Judge salary will need to be set at a sufficiently high level, so as to attract a decent level candidate. Will Sheriff’s now get a payrise, given the upskilling of their position?

Lord Gill has struck a good balance between local access and proper use of resources. However, the Sheriffdom of Grampian, Highland and Islands geography is often misunderstood in the central belt. For example, Wick Sheriff Court is 106 miles from the nearest court with more than one Sheriff (Inverness). The majority of civil work before the court is “Family” related. The review recommends family actions could be taken before the District Judge or Sheriff. The details will need to be worked out carefully. I agree that any procedural business should be carried out by conference call or if parties are all local to court a case management meeting.