Sep 08 2009

Today’s problems in the Sheriff Court

This morning I turned up at Edinburgh Sheriff Court for a five-day hearing in an unjust enrichment action, with senior counsel also on the other side. There had been lengthy discussions as to possible settlement which had gone nowhere and both sides were fully prepared to fight. Aware of the problems this note describes, the solicitors on both sides had independently phoned the court last week to confirm that the case was allocated to a sheriff, who was named, and that court time was available. When we arrived, however, we were told that the sheriff we had been told was to hear the case was not available; nor was any other sheriff; and there was no chance even of one the next day or later in the week. No sheriff, indeed, had ever been available to hear the case; the one the administration had named to both solicitors had never even been told this, and was in fact hearing a part-heard proof in another case.

There was nothing we could do about this. We left.

I went back to the Advocates Library where I heard that at 8.30 this morning the Scottish Courts Service had circulated an SOS that it was short of no less than fourteen sheriffs today in the central belt, and calling on any part-time sheriffs available to phone in for allocation to one court or another. Goodness knows how many they managed to find, but clearly not enough. They might have found more if they’d asked last week.

This is boringly ordinary. It happens constantly in the sheriff court, less often in the Court of Session. But for whatever reason it is almost never said publicly that there is a problem in Scotland of lack of judges to hear civil cases when they are supposed to be heard. The problem is systemic and has been there for years.

What happens in a case like this is that, like other counsel and also solicitors, I render a fee. So far as I am concerned, I have been booked for the week and I have done the prep, which in this case included six lever-arch files of papers, researching some complex law, and also extensive to-ing and fro-ing with others in the case, in particular in seeking the previous week to achieve a settlement. So far as the clients are concerned, of course, all this is wasted. They got no benefit from this. I am expensive; my fee for this waste is less than if the case had run for the week but it is still by most people’s standards a lot of money. The total bills for this fiasco (not just mine, but everyone’s) will not be far south of £20,000. If the case had been legally aided, the public would pay the fees. As the clients were funding themselves, they will be lumbered.

In almost any other similar situation, members of the public would have some recourse against the agency responsible for its failure to provide a promised service. If I buy an air ticket and check in, and then find there’s no plane there, I will have a right to be compensated. Scottish Courts Service doesn’t do this. It does do politeness, perhaps even expressions of sympathy, and meaningful shrugs of both shoulders. It doesn’t do compensation- or at least so it says, although I do know that from time to time it does give ex gratia payments to litigants who have been let down: but when, how much, and on what principles I have no idea, because it keeps this quiet.

In Moore v The Scottish Daily Record And Sunday Mail Ltd [2008] CSIH_66, the Court said this:

We should also bear in mind that from time to time Outer House diets fixed well in advance have to be discharged because of the unavailability of judges. In such cases, the disappointed litigants have no remedy against Scottish Courts Service for the wasted expenses that they incur (Steele, Ford and Newton v Crown Prosecution Service (No 2) [1994] 1 AC 22; Meekison v Uniroyal Englebert Tyres Ltd 1995 SLT (Sh Ct) 63).

In Director General Of Fair Trading v Proprietary Association Of Great Britain & Anor [2001] EWCA Civ 1217, the Court of Appeal in England rejected an argument that the European Convention on Human Rights gave a remedy. It said:

Before the enactment of the Human Rights Act 1998 (“the 1998 Act”) the Lord Chancellor on occasion made ex gratia payments out of the funds allocated to his department by Parliament when litigants complained that they had been put to unnecessary expense by reason of some form of maladministration in the operation of the courts. In those days the House of Lords had made it clear in Steele Ford & Newton v Crown Prosecution Service [1994] 1 AC 22 that section 51 of the Supreme Court Act 1981 gave a court no implied power to make an order out of central funds in civil litigation to compensate a litigant for wasted costs. The appellants maintain, however, that the position has been altered since the 1998 Act came into force on 2nd October 2000. They say that their ECHR Article 6(1) right to a trial by an impartial tribunal has been infringed, and that they are entitled to be compensated for the costs they have wasted as a result of the infringement of that right by the Lord Chancellor, being the emanation of the state responsible for providing impartial tribunals to conduct trials of civil litigation.

Not so, said the court. Maladministration on the part of courts administration is just something litigants have to accept… but should they?

Ah well, time to walk the dog.

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4 comments published

4 comments published to “Today’s problems in the Sheriff Court”

  1. LouisaNo Gravataron 08 Sep 2009 at 11:54 am

    I have only just disovered your blog while searching for some measured words over the ‘al-Megrahi’ situation – I have no legal experience, but I can understand clear comment and explanation!
    Your public revelation today has some similarity to what occurs every day in the NHS (my old stamping-ground) but from stage left. Take a hospital department, for example, that provides routine, emergency and many intricate invasive diagnostic services. It has a large highly trained and educated staff on complex rotas to match the variabilty of clinical need and uses sophisticated equipment of eye-watering costs and upkeep. All of this can either at a standstill or force the staff to waste precious time attempting to reshedule patients and procedures. This regular and distressing event is due to the DNA (did not attend) patients who either do not keep their appointment or turn up extremely late with the effect of grossly disrupting In- and Out-patient services and efficiency. Multiply this throughout the NHS and, on a daily basis, the costs and time lost are not only financial but of clinical significance.
    The patient, on the other hand, has a remarkable array of ‘rights’ to complain should he be kept waiting a gnat’s eyelash above some politically motivated time limit – and are indeed encouraged to do so as directed by a range of brightly coloured posters throughout all hospitals. You will be aware of the dangerous and ridiculous situation of patients stock-piled in ambulances queuing outside A & E departments to sustain the set hospital waiting time limit.
    There are calculated costs of this problem running into the millions and, admittedly, some patients may well be forgiven the odd memory lapse or unavoidable delay. I fail to see, however, the logic in fining hospitals already clinically stretched beyond their so-called skill-mix staffing (ie as few clinical staff as we can get away with on an average day) should their waiting lists stray from the managerial mission goal of the month.
    The NHS is an increasingly imperfect mix of rocketing patient needs (and demands/’rights’), clinical staff chasing their tails even faster due to EWHDs while management (?) appears to be a runaway growth industry.
    At least your dog is getting some advantage out of all this?

  2. Geoffrey M Beresford HartwellNo Gravataron 25 Oct 2009 at 4:39 pm

    It occurred to me that the wasted fees alone would have supported the appointment of what, in the Isle of Man, would be called a Special Referee. He or she would have all the powers of the court, save only for some of the punitive powers. The Court might have to endorse any order for compelling the attendance of a witness, for example, but that would only be a five-minute application. One advantage would be that the Special Referee might be an expert.
    There is relevant quasi-judicial experience among members of the Chartered Institute of Arbitrators in Scotland. In the IoM the Treasury pays but I imagine an accommodation could be worked out.
    I should declare an interest: I was once both an Arbiter in Scotland (your new Bill will change that term) and a Special Referee in the High Court of the IoM as well as being a one time Chairman of CIArb.
    A hearing before Special Referee is not an Expert Reference, it is a Court hearing and results in a judgement in the High Court, which hes the to be appealed to the appelate level.
    Do the Rules of the Court in Scotland allow for any such process?
    I should add that, in one procedural meeting, I asked the advocates (it is a combined profession in IoM) if they had considered arbitration. They glanced at one another and then both replied, “With respect, Sir, this way the Treasury pays your fee.”.

  3. BadfNo Gravataron 02 Dec 2009 at 12:42 am

    Just curious – who is responsible for the wasted expense? Does it fall to the loser or is it split?

  4. JMNo Gravataron 03 Dec 2009 at 12:27 am

    @Badf: Like any other agent-client expense, the client pays in the first instance and then it’s for the court to determine if one party is liable to the other. In this particular case, the determination ultimately was that each side bore its own expenses. If the court had determined that party A was liable to party B, then party A would be paying the wasted expenses for both; that’s probably more common.

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