Page last updated at 15:15 GMT, Monday, 31 March 2008 16:15 UK

Top lawyers attack legal review

Lord Gill
Lord Gill has produced a legal review consultation paper

A major review of Scotland's civil courts may restrict access to justice, the country's top lawyers have claimed.

The Faculty of Advocates was responding to a consultation paper from senior judge Lord Gill on possible changes to the civil court system.

Proposals included altering the jurisdiction of the Court of Session and changes to the appeal system.

The faculty said it "strongly opposes" restricting the role of the Court of Session to only hearing civil appeals.

Complex cases

In its response, the body stated: "The faculty cannot see how depriving litigants of the right to bring proceedings in the Court of Session can be anything other than prejudicial to the right of access to justice.

"Parties with a choice of jurisdiction, as is commonly the case in commercial litigation, are likely to choose the High Court in England in preference to having to commence litigation in a sheriff court."

In most civil cases people currently bringing actions for more than 5,000 can choose to do so at a sheriff court or the Outer House of the Edinburgh-based Court of Session.

Sheriff courts may be cheaper, but people can choose to go to the Court of Session in more complex cases.

There are Scottish citizens who are denied access to justice that they would be granted if they lived south of the border
Faculty of Advocates

The faculty, which comprises of Scotland's practising advocates and QCs, as well as judges, sheriffs and academics, put forward a number of proposals designed to promote access to justice in civil cases where people find it difficult to obtain legal aid.

These included the introduction of conditional fee arrangements (CFAs), which the body said would allow for a "significantly higher recovery of costs" by successful litigants.

CFAs, which have been available in England since 1995, allow clients to enter into an agreement that their lawyer will act on a no-win-no-fee basis, but an additional fee will be payable by the losing side if the case is won.

The faculty said allowing CFAs in Scotland would increase access to justice without any increase in cost to the public purse.

It said a number of cases which would normally be pursued in Scotland are being lost to England, where the percentage of costs recovered by successful litigants is significantly higher.

"Without wishing to over-dramatise the matter, it would be unfortunate if what are essentially Scottish cases are being decided in another jurisdiction," the faculty said.

"It is the firm view of the Faculty of Advocates that there are Scottish citizens who are denied access to justice that they would be granted if they lived south of the border. Such a position is not acceptable."

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31 Jan 08 |  Scotland
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30 Sep 07 |  Scotland

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