Sometimes the theme for an issue of the Journal just chooses itself, and with only a month to go until the revolution in our civil courts, this month's is one such.
While many of the proposals rightly received a broad welcome, much heat was generated by the move to shift a large proportion of Court of Session business to the sheriff court – even if just next door in the National Sheriff Personal Injury Court – due to access to justice issues said to arise from the different rights of audience and attendant issues of recovery of expenses. With the sheriff court closure programme just completed, there were dire predictions of a flood of business with which the remaining courts would struggle to cope.
Things have gone quiet on that front lately. The courts most affected have been labouring mightily to prepare for the big day. The legislation should contain sufficient guidelines on sanction for counsel for the playing field between litigants to remain level as regards advocacy. The recently published statistics on civil litigation (for 2013-14) show a fairly stable position: the number of causes was steady; the number disposed of in the sheriff court was a little down but came with a warning that it was likely to be an underestimate. It will be some time before we can really assess the overall effect of the reforms, but there seems little reason to panic.
Also of some concern is the three month time limit for bringing a petition for judicial review, although this reflects the rule that appeared to operate well enough in England & Wales for many years, until recent restrictions halved the permitted time there. No doubt we will soon hear via the media if any apparently deserving cases are denied a hearing due to the rule; one would hope not, given that the judges have a discretion to waive the time limit on cause shown.
Potentially more serious, for both litigants and practitioners, is ministers' reluctance to adjust the legal aid regulations to reflect properly the work involved under the new procedures – both as regards judicial review and criminal proceedings in the new Sheriff Appeal Court. Without further amendment the reforms will result in levels of remuneration in some instances that bear no relation to the work involved. Can Holyrood's Justice Committee be persuaded of this?
The reform package comprises a bold vision that deserves to succeed. Let it not be put at risk by underhand attempts at cost savings.