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GAZETTE
DECEMBER 1991
Conference on Scottish
Small Claims Procedure
Judge
Mary Kotsonouris,
formely
of the District Court, contributes
the following report on a recent
conference on Scottish small
claims procedure.
Judge Mary Kotsonouris
The Scottish Consumer Council
held a one-day conference in
Glasgow, on 5 November, 1991 to
consider the result of the research
which had recently been completed
on the operation of small claims
courts. Such courts were provided
for under section 18 of
Law Reform
(Miscellaneous
Provisions)
(Scotland) Act 1985
and they
began in 1987. They had been
preceded by a great deal of
research and consultation, and
there had also been a voluntary,
experimental court in Dundee from
1979 to 1981 as a work study
project. The present research had
been carried out by the Scottish
Office working jointly with an
academic team.
The opening speech was given by
Lord Fraser, the Lord Advocate, and
he seemed to be the only speaker
to have anything positive to say
about the past four years. Alan
Patterson, who is a solicitor and
professor at Strathclyde University,
was head of the academic group
who compiled the report. He said
there was widespread dissatis-
faction amongst those interviewed,
particularly with the preliminary
hearings, which were carried out in
such a perfunctory manner as to
serve no useful purpose. People
who went to court were put off by
the formality, the way solicitors
seemed to monopolise the at-
tention of the court, and the fact
that the users were unprepared for
the reality. They had not thought
the procedure was going to be so
structured. Most only heard about
the small claims system through
being told by a solicitor; there had
been very little public information
given. Other speakers echoed these
complaints.
In the afternoon, there was one
workshop where the operation of
the courts was discussed. There
were several Sheriffs present; these
are the judges who deal with small
claims. They were obviously not
pleased about all the criticism that
had been made about them. Some
of them said that courts had to
have a degree of formality and that
it was not possible to run courts
with individual cases scheduled for
certain hours, since a lot of time
would be wasted, when cases did
not go on, for one reason or
another. Other participants ex-
pressed the view that the main
failure was due to the marked
absence of an inquisitorial ap-
proach by the court, rather than an
adversarial one. Later an English
judge said they had small claims
legislation in operation for twenty-
one years, and théy had still not got
it right! He thought an 'inter-
ventionist' approach by the judge
was essential, and that they are
introducing new rules shortly in
England to try to bring this about.
Already, it would appear that the
matter of re-scheduling types of
cases in some Scottish court
districts is being looked at, as well
as evening and Saturday sittings.
However, in spite of the misgivings
expressed, there are no plans at
present to remove the jurisdiction
from the Sheriffs and give it to the
lower courts, or to set up a system
of tribunals.
Elixir for the Christmas
Vacation
A wise judge noted that he was not
aware that men resorted to the
opinions of the courts as a spiritual
elixir in hours of depression.
However, as Christmas is upon us,
Lawbrief
takes the opportunity of
referring to a book which may truly
serve as an elixir during the
Christmas vacation.
The writer refers to Rex Mackey's
Windward of the Law
(2nd edition)
which was launched in the Berkley
Court Hotel on 13 November, 1991.
The guests at the launch were
addressed by Paddy MacEntee SC,
QC. Referring to Rex Mackey's
period on the Donegal Circuit,
Patrick MacEntee (who arrived
much later on the same circuit)
observed that "he [Rex Mackey]
left behind him the reputation of a
most extraordinary person - a
mythological figure who had done
everything possible, good and bad,
for about 300 years."
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