Does Lord Gill’s review into how we deliver civil justice represent a missed opportunity to fundamentally alter the way in which our society interacts with the legal system?
Patrick McGuire and Frank Maguire, partners at Thompsons Solicitors, who are not related, despite having very similar sounding names, also share a very similar outlook on the world. Well known for their work in compensation cases, especially asbestos-related work, and for driving policy in areas like corporate killing, it would be fair to say the two men, both highly experienced lawyers, do not generally toe the establishment line.
This holds true, more than ever, in their response to Lord Gill’s report on reforming Scotland’s system of civil justice. Put simply, McGuire and Maguire see the reform as a technocratic lawyerly attempt to refine the law for the law’s sake at best, and at worst, the thin end of a wedge that would see the introduction of a two-tier justice system that effectively allows the wealthy to purchase better access to justice than the poor.
Frank Maguire, the senior partner at Thompsons, outlines his central objections to the review in a bright meeting room in the firm’s Glasgow offices.
“One thing we think about Gill’s review is that it is very procedural. It doesn’t give any indication of what values we are working on, what are the substantive values in our society which we want to deal with in our justice system. And that informs priorities.
“So what are we doing with our justice system, what is of value in our society, what are the high values that we want to promote and thus our justice system should be geared towards? That’s what we find is almost completely missing in the Gill review,” he says.
Maguire identifies Gill’s recommendation that civil cases of a value less than £150,000 be dealt with by sheriffs rather than in the Court of Session as a key indicator that the review has its priorities askew.
“I would have thought the highest value in our society is our own lives so therefore if a life has been deprived, if someone has been killed, if someone has been given near fatal injuries, that should be given a high priority.
That would inform everything that informs our criminal justice system, it informs knife crime, it informs drugs, things like that, but it also involves lessons to be learned from it, either by an individual or by the state and then thirdly, what should we be doing for all those people who have been deprived of a loved one?
“The only value, and it is actually a procedural mechanism rather than a value, is that Gill seems to think that if a case isn’t worth £150,000, then it doesn’t merit our highest court. And that is it. But if you look at it the other way around and ask, ‘What are our high values?’, then they may not reach £150,000. It might be £50,000 or whatever, but why should they be excluded from our supreme court if that is our highest value?
“In other words, Tesco could have a dispute on one of its contracts for the delivery of butter that went rancid or something, in terms of society’s concern about that, it’s bad, it shouldn’t happen and it is not business efficient, but if I have a man who is dying from asbestos, or a family whose loved one has gone out one morning and been killed at work, then the value of that case might be a lot less than £150,000 and this is where we come down to the crunch because you immediately see that when you put the substantive value in there, it dictates a different outcome from putting a procedural device or take on it,” he argues.
For Patrick McGuire, the £150,000 limit has a deeper impact. The use of such a limit will effectively clear the Court of Session of smaller cases, reserving it, in his view, for big business.
“When you start to scratch the surface, you come to see what the motives are for which type of cases ought to remain in the Court of Session and when that policy decision is made as to what should stay then some mechanism needs to be used to get everything else out and I think on the balance and exercise that is where the £150,000 comes from.
“I think for me personally, the motives are fairly clear. On the political side of things, with Mr MacAskill, there is a very clear role to make the Court of Session the forum of choice from around the world irrespective of their contact with Scotland or not, to come here to litigate their cases. If you like, big business will use the Cayman Islands for tax, Switzerland for banking and Scotland for litigation. But is that really what we in Scotland want? I think that is the political motive and everything else flows from that,” he says.
Both men argue that paradoxically, a review which claims its recommendations will improve access to justice for the average Scot will in fact do the reverse.
“This certainly improves the ability of certain groups to access the courts that they want, but that is a million miles away from access to justice as the people in the street would look at it. Yes, it certainly allows big business to come here and use our highest courts, yes, it allows those who have got the intelligence and guts to run their own cases without fear in the small claims,” says McGuire.
And as Frank Maguire points out, the Lord President himself has opposed the principle of user-pays: “If you look at Lord Gill’s review, he actually approves of the idea that we should all pay for access to justice. What I mean by that is not through our general taxes, but each of us, before we get into court, writing a cheque and saying, ‘Here’s my cheque for this bit of procedure’.
“I am surprised that a pre-eminent judge agrees with that kind of system. What he seems to be saying is ‘All these reforms will be paid for by the user’. Now that’s not what the Lord President says because in his reply to this debate before the Justice Committee, he says that is against democratic principles of access to justice.” Finally, both Maguire and McGuire make the point that Gill’s review, while undoubtedly undertaken with the highest sincerity, not to mention with the years of experience behind the review team, does have the inherent disadvantage of not being fully independent.
For better or worse, Gill and his team are an integral part of the system they were being asked to reform.
Patrick McGuire says: “The politicians went to the country’s second most senior judge and in many ways, they’ve just allowed him to write his own job description and for me, there is a certain irony in that. Surely the starting point should be – what does the public want from its justice system?” Maguire agrees: “That’s the worry, that because a judge said it, it must be right. But the judge has actually moved into the political sphere, this is a review that has all sorts of ramifications about what values are and that’s a political question. A judge has no special hold over our values.”