Slow and outdated court system? That’s about to change thankfully

Gavin Deeprose and Alistair Drummond explain the possibilities

THE Scottish civil justice system has long been criticised as slow, outdated and expensive. Lord Gill concluded as much in the Scottish Civil Courts Review 2009 and made various recommendations to reform it. One of Lord Gill’s most important recommendations was that the procedural rules governing civil litigation in Scotland should be reviewed and rewritten.

This recommendation has been taken forward by the Scottish Civil Justice Council, which published its first full report on the subject in May. It sets out the Council’s initial thinking on the over-arching principles of civil procedure in Scotland and makes recommendations for future rules. The most radical proposals relate to the use of tech- nology within the new procedure. The Council suggests the new rules should seek to shift the process from a mainly paper-based one to an electronic one. If implemented, this would see email communication with the courts becoming the norm and each procedural step in litigation, from the lodging of documents to court applications, being made electronically.

Other innovations under consideration are the use of shared online editable “pleadings” and digitally recorded evidence.

Another important recommendation is the introduction of case management rules to enable judges to better control the pace of litigation. At present, only some categories of case are actively managed by judges throughout the procedure. Other

cases are assigned to timetables, such as those used in personal injury actions, or are driven forward by parties taking certain procedural steps. The Council considers that the new rules should allow judges to decide the appropriate form of case management in all defended cases, except those automatically assigned to a timetable.

Linked to this theme, the Council also recommends that courts’ case managementpowersshould be improved. Specific mention is made of the greater use of “pre-action protocols” – rules which require parties to take specific steps and disclose certain information before commencing legal proceedings.

Finally, the form, style and language of the new rules is considered by the Council. Their view is that the new rules should be drafted with readability and usability in mind and that language should be consistent across Scotland’s various courts and procedures. The adoption of a statement of principle within the rules is recommended. This operates in other jurisdictions to improve case management.

Read as a whole, the report is ambitious and seeks to bring Scotland’s civil procedure rules into the modern era. Most regular court users will welcome the proposals in relation to the use of technology, particularly the introduction of a long-overdue facility to enable electronic interaction with the courts. More controversial, perhaps, are the proposals around the consistent use of terminology, which could result in some historic legal expressions disappearing. One thing is for sure; if the Council’s recommendations are implemented, there are big changes ahead for the civil court system. Gavin Deeprose is a Senior Professional Support Lawyer and Alistair Drummond is a Partner in the Litigation and Regulation, DLA Piper.