“Isn’t it incredible where you end up in a situation where the small guy cannot take on the big guy because they cannot afford the legal action?” “That’s an incredible situation – no justice can be served unless you can afford it.” These are words of Edinburgh South MP Ian Murray, referring to concerns about Partick Thistle Football Club’s inability to challenge the Scottish Professional Football League’s decision to relegate the club this season. As it happened, Thistle later received financial support to enable it to join Heart of Midlothian Football Club in that club’s petition to the Court of Session.

More recently it was reported that the clubs responding to the case, Dundee United, Raith Rovers and Cove Rangers, have set up a crowd funding campaign to help finance their legal bills in the subsequent arbitration. The predicted costs are reported to be in six figures.

In a recent article in the New Statesman, the economist Paul Collier expressed the view that “nobody is cheering the two professions that Britain rewards most generously: the City bankers and lawyers to which our clever youth have gravitated. And nor should we: they are two professions liable to do the most damage to our economy during crisis.”

This is strong stuff. And it does not do the legal system or profession good to be the subject of such commentary which, it is appropriate to recognise, probably goes right back to Charles Dickens and the fictional court case of Jarndyce and Jarndyce in the novel Bleak House where “the legion of bills in the suit have been transformed into mere bills of mortality”. And those in Scotland might argue that the New Statesman article is more pertinent to high profile causes in the courts and scandals in financial institutions south of the border. But it all sticks of course.

I do not seek to argue that legal costs are not or will not be properly incurred. They are a feature of the way the system has developed as those within it seek to provide high quality services. Indeed, along with many others, I have been a beneficiary. However, might the time have come to consider what can be done to address these concerns? Could the courts and the profession be clearer in explaining to the general public and potential court users why costs can be so high and therefore why some potential litigants must be excluded or compelled to resort to other sources of funding?

Indeed, is it preferable and equitable for some to be compelled to seek out alternative ways to fund such cases? (I note Sheila Webster and Frances Sim’s article in these pages just a few weeks ago about commercial litigation funding, which can provide reassurance for some clients). Is this a valid approach to accessing justice? Could we make more use of pro bono or lower cost initiatives (such as the Faculty of Advocates Free Services Legal Unit) to ensure greater access? What else could be done?

While there will always be a relatively small number of cases in which legal rights need to be adjudicated upon, as readers might expect I would also express the hope that more and more disputes would be negotiated to a satisfactory conclusion without the need to go to court at all, whether by using the services of mediators or (preferably) because lawyers and other advisers have the skills to do so themselves. The majority of disputes do resolve in this way and many Scottish lawyers are adept at this.

With the Covid-19 pandemic, matters have become more acute. Courts and lawyers around the world are encouraging alternative options to help deal with the number of cases which are likely to be caught in a backlog.

Indeed, in May, the UK Cabinet Office issued an interesting and forward-looking guidance note on “responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency”. The note strongly encouraged those with disputes to “to seek to resolve any emerging contractual issues responsibly – through negotiation, mediation or other alternative or fast-track dispute resolution – before these escalate into formal intractable disputes".

Negotiation, mediation, or other alternative or fast-track solutions – for many potential and actual disputes that must surely be the way ahead.


Published in The Scotsman on Monday 20th July 2020.


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