Case Study
Scottish Civil Courts Review
Monday 23rd November 2009
In February 2007, Lord Gill was appointed to head up a review into the Scottish Civil Court system. The official remit was:-
"to review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to
- the cost of litigation to parties and to the public purse;
- the role of mediation and other methods of dispute resolution in relation to court process;
- the development of modern methods of communication and case management; and
- the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts;
and to report within 2 years, making recommendations for changes with a view to improving access to civil justice in Scotland, promoting early resolution of disputes, making the best use of resources and ensuring that cases are dealt with in ways which are proportionate to the value, importance and complexity of the issues raised."
The Report from Lord Gill was published on 30 September 2009 and it contains a number of recommendations which will impact on how housing cases are conducted in Scottish Courts. This briefing note intends to provide a summary of the main recommendations and a discussion on how these may impact on RSL's and the preparation and conduct of housing cases in the civil courts.
Specialised Sheriffs
A criticism of many heritable courts is that different Sheriffs deal with the cases every week and this results in a lack of judicial consistency in the handling of each case, particularly in the larger heritable courts found in Glasgow, Edinburgh, Hamilton, etc.
The Gill report recommends the introduction of a system by which a number of Sheriffs in each Sheriffdom will be designated as specialists in particular areas of practice. The Sheriff Principal will have responsibility for designating Sheriffs within their Sheriffdom to hear cases in a particular area of specialisation. In the event that an action is raised in a Sheriff Court where there is no Sheriff with the specialisation required, then the case will be transferred to a court where there is such a Sheriff.
The advantage of having specialised Sheriffs dealing with housing cases will be greater consistency in judicial decisions. These Sheriffs will have greater knowledge and a better understanding of what can be a complex area of law. There will be less need to address Sheriffs on legal authorities as these will already be within their own knowledge. Specialised Sheriffs, in conjunction with a case management system (discussed below), should ensure that cases progress more swiftly through the civil courts and with a need for fewer continued hearings.
District Judges
As Sheriffs become assigned into their specialised areas, consideration has been given by Lord Gill into the impact on Summary criminal business (that is to say minor offences) and civil claims of a modest value. Lord Gill's report identifies the need for a more junior level of judge than a Sheriff. Sheriffs would then be free to concentrate on more serious crimes and other civil business.
The Gill report recommends that a new judicial office of District Judge should be created. The District Judge would hear summary criminal business and lower value civil cases. The District Judge would have a civil jurisdiction comprising actions with a value of £5,000 or less, housing actions and appeals from referrals from the children's hearings.
The practical implementation of this recommendation will probably see a number of district judges appointed in the larger courts in Glasgow, Aberdeen and Edinburgh and floating district judges in other areas. One of the current problems with civil business, particularly Proofs, is that there can often be considerable delay in the commencement of proceedings if Sheriffs are held up with custody cases or deferred sentences. If there are a large number of Proofs assigned for a particular day which are ready to proceed, then it is common for cases to be delayed until another day. This is clearly frustrating for housing officers who have been involved in assisting in preparing cases for Proof and who have attended court to give evidence. The allocation of specific days for the business of District Judges will result in more cases being heard in a day and will generally result in more efficient use of court time.
Single Docket System
In order for procedural business to be managed more efficiently, Lord Gill's report recommends that cases be allocated to a particular judge or Sheriff in a single docket system.
The key features of a docket system are that a case is allocated to a judge or Sheriff at the outset and stays with him/her until conclusion. The docket judge can specify specific procedure to be followed, such as case management hearings or referrals to mediation and the docket judge will also monitor compliance with court orders and ensures that hearing dates are maintained. The benefit of the docket system is greater judicial continuity. It aims to discourage unnecessary court appearances and saves time and cost in having to explain the case afresh each time it comes before a judge or Sheriff.
A further recommendation is for the adoption of an appointment-based system for the hearing of procedural business, whether by representation in person at court or by telephone or video conferencing. Where representation in person is required, the appointments should be on a "not before basis". Many of you who have attended the heritable courts to observe proceedings will be aware of the considerable time spent by parties on both sides waiting for cases to call. It is not uncommon for agents at Glasgow heritable court to be still sitting at court at 6pm waiting for cases to call! The appointment-based system will result in cases being set down to call "not before 10am" or "not before 12 noon" for example. This eliminates the requirement for everyone to be present in court when court business commences and cases will instead be grouped to call at a set time.
Case Management System for Housing Cases
At the moment housing cases are conducted under Summary Cause procedure. Summary Cause procedure is intended to be quick and informal yet the reality for housing cases is that it is anything but quick and informal. Cases are frequently continued on several occasions and can take several months before reaching Proof.
The recommendation of an active judicial case management system is one of the most important
proposals in the Civil Courts Review. New rules will be formulated which will see a more problem solving or interventionalist approach adopted by courts. At the first hearing the District Judge will decide what further information is required and what the next stage of procedure will be. He will be able to continue the case to a later date if he considers that to do so will enhance the prospects of achieving settlement. The sheriff or district judge will also be able to order the disclosure of information and documents such as tenancy agreements, notices of proceedings, rent statements and other relevant documents will all now require to be lodged at the outset of a case rather than in the lead up to a Proof hearing.
Recommendations from Lord Gill will see Pursuers required to provide more information at the outset of a case into the circumstances of how the arrears have arisen and moreover, more information will be required when addressing the Sheriff on the test of "reasonableness". The impact of this on RSL's is that housing officers will need to provide more information at the outset of a case when instructing agents to commence proceedings for recovery of possession including information on how the arrears have arisen, what has been done to help tenants address their arrears, family circumstances which may have contributed to the arrears accruing and any information on whether the arrears have accrued owing to circumstances outwith the control of the tenant.
Housing Officers/Managers are certain to appreciate that a significant problem is that of tenants who are in difficulty but fail to seek help at an early enough stage. All too often tenants wait until the date of the eviction is almost upon them before seeking help through appropriate channels. Intervention and assistance at an earlier stage may will reduce the number of court hearings and achieve settlement far earlier than cases where tenants wait until the last minute. The Gill report proposes that the Scottish Government should develop and extend in-court advice services, including services offering specialist help in housing matters. Help-desks and in-court advisors are currently found in Glasgow, Paisley, Kilmarnock, Aberdeen, Dundee, Hamilton, Airdrie and Edinburgh. Our experience in dealing with parties represented by these in-court advisors is that it helps in focusing the issues between the parties and can see a more speedy resolution where tenants have encountered difficulties in progressing benefit claims.
It is anticipated that the proposals recommended in Lord Gill's report will be implemented within the next 18 months to two years.
If you would like any further information on the issues raised in this briefing contact
Fiona Greer: fjg@tcyoung.co.uk, 0131 220 7660
Jim Bauld: jdb@tcyoung.co.uk , 0141 221 5562
Ruth Johnston: rej@tcyoung.co.uk, 0141 221 5562
Gayle Blaikie: glb@tcyoung.co.uk, 0141 221 5562
Alastair McKendrick: awm@tcyoung.co.uk, 0141 221 5562
Please note that this briefing not a comprehensive statement of the law. Legal advice should be taken on individual circumstances