"Fitness for purpose" has become the buzzword in recent times for testing whether our institutions are delivering the services the public are entitled to expect.
"Are the Scottish civil courts fit for purpose?" is the question posed by a consultation launched in November.
This root-and-branch review of the structure, procedure and working methods of the civil courts in Scotland is being undertaken by a Project Board chaired by Lord Gill, and made up of members of the judiciary, assisted by a policy group whose membership includes solicitors, advocates, and representatives of organisations such as the Scottish Mediation Network and the Scottish Consumer Council. The intention is that the Project Board will issue a report with recommendations within two years.
The objectives of the review are to ensure that cases are dealt with in ways which are "proportionate to their monetary value and the importance and complexity of the issues raised" and offer value for money by "making sure civil justice services are efficient, meet reasonable public expectations, and promote early resolution of disputes".
The remit of the review is extensive. It will, however, focus in particular on seven keys areas: the costs of litigation; the potential benefits of specialised courts or tribunals; the balancing of demands between civil and criminal business; whether there should be greater use of case management and technology by the courts; the current structure and jurisdictional limits of the civil courts; the scope for increased use of mediation as a means of resolving disputes; and the streamlining of court procedures.
Many believe this review is well overdue. The current civil court system has operated in much the same way for centuries. While recent attempts at reform have been welcomed, including the introduction of specialist commercial courts in the Court of Session and, more recently, in certain Sheriff Courts, many feel that those reforms have simply been tinkering at the edges.
Would-be users of these commercial courts are letting their feet do the talking. In recent years there has been a dramatic decrease in the number of actions being raised in the Court of Session Commercial Court – 50% less in 2005 than in 2004 and, again, 50% less in 2006 than in 2005. Hardly a vote of confidence in a modernised system introduced in 1994.
These statistics do not mean the disputes that the Commercial Court used to deal with are not arising. They are evidence that businesses are choosing to resolve their disputes in other ways.
There is undoubtedly a growing preference on the part of many commercial organisations to litigate south of the border whenever possible. Businesses with the choice are attracted by a more streamlined court system which offers specialist judges and a better chance of recovering the real cost of litigation if the client is successful. The use of mediation is strongly encouraged. Parties can have awards of costs made against them if they unreasonably refuse to mediate. Rightly or wrongly, the English courts are generally perceived to be more pro-active, modern and user-friendly, and to be taking a pragmatic approach to servicing the needs of their commercial users.
It is necessary to halt this trend, by learning whatever lessons can be learned from England or anywhere else and by embracing the best of the new ideas which this review will hopefully generate, and to prove to the business community that Scotland can provide a court system able to deliver efficient, effective resolution of its disputes in a reasonable time and at reasonable cost.
While any radical reform will naturally take time, let's hope that it won't be too long before businesses and their lawyers will agree that the Scottish civil courts are fit for purpose.
Kenny Cumming is Head of Litigation specialising in commercial dispute resolution with UK law firm Shepherd and Wedderburn