For many reasons, the civil justice system is frequently seen as a last resort. That said, it is often the case that poor decision-making at the outset of a dispute can restrict the alternatives that are available to parties. The third recommendation of the CJAG report acknowledges this and stresses the importance of ensuring that the justice system is not, where possible, required to resolve disputes that could have been dealt with more appropriately at an earlier stage. An overview of all of the recommendations can be found here.
The report notes that:
"Efforts are currently being made to provide support to public authorities to improve their decision-making. The Scottish Government has recently published ‘Right First Time,’ a practical guide for public bodies which aims to improve the quality of their initial decisionmaking by helping their staff to understand the law and its impact on their decisions. In addition, current work by the Scottish Public Services Ombudsman on streamlining public bodies’ complaints processes and increasing consistency by developing a statement of complaints handling principles and guidance on a model complaints handling procedure should help public bodies to ‘get it right first time’."
While the focus of the report is again very much on the individual, the Home Owner and Debtor Protection (Scotland) Act 2010 ("HODPA"), shows us that where legislation imposes requirements aimed at resolving disputes at an early stage, this can have huge implications for any business involved in the dispute. HODPA sets down a number of pre-action protocols that must be complied with before the enforcement of a standard security. While primarily concerned with residential properties, the definition can also include hotels, pubs and other commercial property that has some residential purpose.
HODPA is one example of private business being regulated by a statute which controls how it should conduct itself prior to any court action. However in a wider sense, the concept of 'getting it right first time' can apply to almost any dispute. This is closely linked to the triage approach CJAG recommend; facilitating appropriate action at an early stage can divert potential court action to an alternative, and often more appropriate, resolution.
One symptom of not getting it "right first time" is that cases are delayed as disputes about the relevant law are resolved, or one party changes their case becuase they have not properly investigated the facts. One way of trying to address this problem is to use pre-action protocols. These require the parties to fully state their case before they go to court.
The use of pre-action protocols in commercial actions is useful where both parties are willing to actively engage with the process, and this can help to focus the particular issues in dispute. We think that the CJAG is correct to stress the wider benefits of a justice system that facilitates parties taking the correct action at the outset of a dispute.