Wednesday, September 21, 2022

The much-needed modernization of Scottish civil procedure is coming – Steven Smart

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At a time when consumer disputes are increasingly being fought and decided electronically by companies such as large online retailers, banks and travel agencies, the process can be daunting and time-consuming for those seeking civil litigation for the first time.

The issues raised by Covid have required Scottish courts and the Tribunal Service, as well as the legal profession, to innovate and adapt quickly to prevent the judiciary from grinding to a halt. Some of the measures put in place have been widely welcomed and have been incorporated into ongoing day-to-day practice, for example remote procedural hearings.

However, a modernization and reform of Scottish civil procedure was considered long before the dreaded virus hit. In his review published in 2009, then Lord Justice Clerk Gill recommended a rewrite of the Civil Law Rules to introduce a system fit for 21st Century purpose. For this purpose, the Scottish Civil Justice Council set up a committee with sub-committees in 2013 to examine certain strands of the procedure. A first report was published in May 2017, providing a vision for future changes. The committee released its second report on August 3, 2022, in which it identified a framework for a new method for handling ordinary claims in the Court of Session and Sheriff’s Courts. This is the second of five stages to “completely replace most civil regulations”.

Some key principles underpin the report’s proposals. Actions should be electronic as much as possible. Individuals should only appear in court when deemed necessary. There should be case management to set the pace and content of interventions. The same judge or sheriff should be in control of an action from start to finish. Whenever possible, judicial requests should use generic forms that can be adapted, rather than different forms for different types of orders sought or measures to be taken. While ADR should not be mandatory, it should be considered.

The full details of the report will be published on the Scottish Civil Justice Council’s website. Key suggestions illustrate the magnitude of the development under consideration, including the following:

Formal pre-trial procedures in all cases; moving away from detailed pleadings to ones that focus on the issue at issue, with the sheriff or judge having the authority to order parties to limit or expand their pleadings; A case management questionnaire must be submitted with the defense; At any stage, the judge may make an order “to bring about a just settlement of the dispute”; Witnesses will only attend essential hearings when necessary and alternative means of obtaining their testimony, including written or videotaped testimony, will be used. Oral testimonies will only be taken in person at the judge’s or sheriff’s discretion, such as when credibility is at stake; Parties are expected to discuss potential ADR during a lawsuit. While not suggested as a mandatory requirement, the report highlights a degree of flexibility in approach should legislation be introduced directing parties to investigate this; If expert opinions are required, the parties must consider appointing a joint expert; A judge or sheriff has the authority to determine what lines of argument are acceptable at a substantial hearing and how long they may be presented.

Draft rules to implement the new model are now being prepared in anticipation of an in due course consultation where court users can provide feedback. These rules apply only to ordinary lawsuits and not to more specialized areas such as personal injury and family litigation, which are dealt with at a later stage of the program.

As technological advances have increasingly been adopted by the courts, allowing for more flexible and convenient administration of justice, measures to further this goal are likely to be welcomed. Provisions remain for paper complaints to protect access to justice, particularly for those representing themselves or assisting lay people.

The devil will be in the details when the new rules are presented in relation to more fundamental proposed changes. Undoubtedly, it will be of interest to all court users how to achieve the balance between efficient administration of court affairs and adjudication in the modern system.

Steven Smart is a Partner and Head of Horwich Farrelly Scotland

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