Following on from our e-update last Friday summarising the Review's recommendations in relation to raising the limit of the exclusive jurisdiction of the sheriff court, we now turn to consider the recommendations made in respect of case management and the use of IT by the courts.
The central proposition is that the court, rather than litigants, should control the conduct and pace of litigation. To this end, it is hoped that effective supervision and case management by the court will help to redress any inequality of arms and promote a fairer result. It should also help achieve shorter time scales and ensure that costs incurred are commensurate with the complexity of the action.
The most significant recommendations in this respect are (a) the introduction of a docket system - each case being allocated to a judge at the outset and staying with them until conclusion, and (b) active judicial case management - a case management hearing taking place shortly after the allocation of a judge, with a presumption that all subsequent procedural and substantive hearings in the case will be dealt with by that judge.
At present commercial judges in the Court of Session are allocated their own case lists (with the commercial procedure in Aberdeen and Glasgow Sheriff Courts operating similarly). It is recommended that with the exception of certain specified types of action, all actions in the Court of Session and sheriff court should operate under a docket system and be subject to judicial case management. A move to such a system would encourage judicial continuity, should help maintain the pace of litigation and help narrow the issues in dispute sooner to achieve a quicker resolution or settlement of disputes.
The Review proposes that there should also be a single new set of rules for cases for £5,000 or less (called 'the simplified procedure'). These rules should be based on an interventionist approach being taken by the courts to identify and narrow issues to be heard by way of evidence or argument. The rules should be drafted in plain English for use by party litigants rather than legal practitioners.
It is envisaged that specific actions in the sheriff court will be heard by designated sheriffs and we will cover the Review's recommendations in respect of specialist sheriffs in tomorrow's e-update.
It is also recommended that the rules of court be amended and that judges should have additional powers at their disposal to enhance case management. Whilst not exhaustive, the recommendations include:
- Earlier and wider disclosure of evidence, with recovery of documents competent at any stage in the proceedings;
- Advance intimation and lodging of witness statements;
- The use of abbreviated written pleadings for all actions in the Court of Session and sheriff court (similar to the system already operated by commercial actions in the Court of Session). Whether adjustment is necessary falling to be determined by the judge or sheriff;
- The introduction of a presumption that an expert's report is treated as the evidence in chief of that witness, with oral evidence restricted to cross examination or comments to be made in relation to other expert reports lodged in process or led in evidence;
- A procedure for summary disposal that is open to both pursuers and defenders;
- A power for a judge to limit the time allowed for specific types of hearings in certain cases.
Finally, it is suggested that an increased use of IT by the courts would help reduce time and costs and support the work of the civil courts in Scotland. To this end, there should be no bar to conducting case management hearings by telephone or video conferencing. Similarly, the use of email as a means of communicating with the courts and the judiciary should be encouraged and all evidence in civil cases, apart from those under the simplified procedure, should be recorded digitally.