It is not often that a civil court system is subject to wholesale review. Lord Woolf transformed the court system in England and Wales, after his review in 1996. The Scottish courts have had a similar review with the "Scottish Civil Courts Review" (the "Gill Review") in September 2009. Since the Gill Review was published it has been subject to comment and analysis by many individuals and organisations, responding to the wide-ranging recommendations put forward. The latest response comes from the Civil Justice Advisory Group ("CJAG") who published their report titled "Ensuring effective access to the appropriate and affordable dispute resolution" (the "Report") on 18 January 2011.
Access to an effective justice system is important to everyone, not just consumers and so called "party litigants". While the introduction of "McKenzie Friends", long permitted in England, is a welcome development, what businesses are looking for is a swift, cost effective mechanism for resolving their contract and corporate disputes.
When preparing the Report, CJAG focused its responses on the impact the recommendations of the Gill Review will have on individual users of the courts. The Report highlights the opportunity available to consider the wider context of the civil justice system, reviewing not only the civil courts but the alternative methods of resolving a dispute, such as mediation, that are becoming increasingly common in practice. In a number of key areas the Report agrees with, and builds upon the recommendations of the Gill Review.
The Report contained 15 recommendations which were:
- A system-wide user-focused approach should be taken to future civil justice reforms, looking beyond the courts to the wider civil justice system.
- The civil justice system should be designed to permit a ‘triage’ approach to help inform and guide individuals in identifying the most appropriate route to dealing with civil justice problems at each stage of the ‘user’s journey.’
- The principle of ‘getting it right first time’ should be encouraged wherever possible.
- .A web-based system should be created, bringing together information on rights, responsibilities, sources of self-help and advice and options for dispute resolution, which would guide people through the dispute resolution process.
- The Scottish Government should ensure that its digital strategy includes consideration of the use of IT in delivering justice services.
- Funding should be made available to pilot more proactive public legal education initiatives to build legal capability amongst particular population groups.
- Court rules should be introduced which would encourage, but not compel, parties to seek to resolve their dispute by mediation or another form of alternative dispute resolution, prior to raising a court action.
- A mediation scheme should be available which could be accessed before a court action is raised, as well as being available to the court.
- There should be a clear separation between civil and criminal business in the proposed third-tier of civil jurisdiction.
- There should be a specialist jurisdiction to deal with housing cases.
- The Scottish Government should review the way in which family cases are dealt with, including the rules and procedures which should apply.
- The third-tier should operate within a simplified process, with plain English, user-friendly rules, and clear, simple forms. Efforts should also be made to ensure the culture of the third-tier is not intimidating for litigants.
- In-court advice services should be rolled out nationally, although these need not necessarily be based within individual courts.
- The outstanding issues from the Civil Justice Advisory Group’s original report identified as being in need of review should be considered by the Scottish Government as part of its system-wide approach to reforming civil justice
- The full range of relevant interests should be given the opportunity to provide sufficient input to future civil justice reform.
The Report advocates what could be seen as a more holistic approach to the reform of the civil justice system. Whilst the Gill Review's remit was the court process, CJAG suggests putting this in the wider context of civil justice as a whole. Together, the Gill Review and the response from CJAG raise important questions as to how a civil justice system should be reformed to keep pace with technological changes and increasing reliance on alternatives to the court when resolving a dispute.
Over the coming weeks we will be commenting on each of CJAG's 15 recommendations, highlighting the key issues raised, and the possible implications for the business community.