Faculty Response to the Civil Courts Review
News - date posted 21.01.10
Download the Faculty Response
(.pdf - 879KB)
The Faculty of Advocates has voiced its support for many of the practical recommendations in the Scottish
Civil Courts Review which it thinks will bring substantial and cost-effective benefits to the administration of justice in Scotland.
However, the Faculty has expressed serious doubts about whether the substantial cost involved in proposed
structural changes to the court hierarchy would increase efficiency or lead any other significant public
benefit, particularly at a time of spending constraint.
One of the Faculty's concerns is the proposal to remove from the Court of Session - Scotland's supreme
civil court - cases worth less than £150,000.
While it is not opposed in principle to raising the current limit of £5,000, the Faculty describes
the proposed £150,000 figure as "inexplicably high" and adds: "It is three times the figure that
applies to equivalent courts in England and 10 times that in Northern Ireland."
In its 62-page response to the Scottish Civil Courts Review headed by Lord Gill, the Lord Justice Clerk,
the Faculty expresses support for the principle of providing the public with a just, fair and cost-effective
resolution of legal disputes.
The Faculty says: "It is beyond argument that not every part of the current system works efficiently, but
the radical restructuring exercise proposed is not necessarily the answer. The answer lies in reform of
current practice and procedure which the Faculty of Advocates fully supports."
The Faculty says Scotland currently has a simple court structure comprising one national court each for
civil and criminal business- the Court of Session and High Court of Justiciary respectively - one layer
of local courts throughout the country for civil business - the Sheriff Courts- and two layers of local
court for crime- the Sheriff Court and the District Court.
"The current structure does possess the merit of one national court for civil business and one national
court for criminal business. By contrast as regards civil business the recommendations of the Review
contemplate at least two and possibly three additional national courts."
The Faculty sees the underlying theme of the Gill proposals as reducing the workload of the Court of
Session and High Court as an end in itself.
"It is critical to observe that this objective is achieved by displacement of work and not by improved
"To achieve this it will be necessary to introduce a compensating plethora of new courts and judicial
appointments to alleviate the impact of passing displaced cases down to already overworked Sheriff Courts."
"The question arises as to whether, as Scotland enters a prolonged period of public expenditure
constraints, such change is justifiable. The Report advances no persuasive justification."
"Among the areas of work effectively downgraded are to be appeals and referrals from Children's
Hearings. The justification for downgrading the priority afforded to child protection in our legal
system is not apparent."
As far as the jurisdiction of Court of Session is concerned the Faculty says there is no evidence of
public dissatisfaction with the present system but a change along the lines proposed in the Gill
Report would displace more than 2,000 cases out of a total of 3,400 to the Sheriff Court.
"The Faculty would submit that there should be far greater research into relative costs of litigation in
the Sheriff Court and the Court of Session before a properly informed decision of appropriate level of the
privative (exclusive) jurisdiction of the Sheriff Court can be made."
The Faculty response points out that the majority of personal injury cases in the Court of Session are
conducted on a "no win no fee" basis under which advocates and solicitors are paid by the recovery of
judicial expenses from the losing side.
Pursuers who raise damages actions in the Court of Session are entitled to the services of counsel but the
Faculty notes that the Gill Report is silent on whether there would be sanction to use counsel in the
"Without such certification the effect of increasing the limit (to £150,000) would be to exclude access
to an independent referral Bar in those personal injury cases which proceed in the Sheriff Court.
An important right that most pursuers in such actions currently have would thereby be removed."
In its response the Faculty also calls for the use of specialist Sheriffs, judicial specialisation in
housing and family cases, the promotion of public legal education as part of a strategy to improve
access to justice, a special multi-party procedure where a number of cases involve common or similar
issues of fact or law and for a plan to eliminate the use of part-time judges.
Back to News