Justice by ambush

children's hearings. It would also be gratifying to think that the

system is mature enough to accept the kind of soundly-based and

constructive criticism which Lord Morton of Shuna offered in the House

of Lords yesterday. His comments may not make comfortable reading for

Lord President Hope, but coming from a fellow Senator of the College of

Justice with a lifetime of experience in the law, they can hardly be

described as ill-informed.

Lord Morton's basic point is that civil justice in the Court of

Session, Scotland's supreme civil court, is far too slow, cumbersome,

and expensive. This is not, perhaps, a startlingly fresh claim, but it

has surely never been made to such telling effect or from such a

powerful source. More importantly, Lord Morton has definite ideas about

what can be done to restore the College of Justice to its former

standing. As he says, while attention has been lavished on the criminal

system over the past 20 years, resulting in a plethora of legislation,

the civil system has been largely ignored. The conduct of cases and

their length is by and large dictated by lawyers, who are not

necessarily averse to spending four days in the highest civil court in

the land arguing over the worth of a sprained ankle. Since it costs at

least #1500 a day to litigate in the Court of Session, it is little

short of madness from the client's point of view to spend a week arguing

over agreed damages of #2000. It is also a complete waste of the

country's best legal brains.

According to Lord Morton, much of the time is wasted on a system of

justice by ambush in which both sides play their cards close to their

chest, while taking care to hide an ace or two up their sleeves. He

recounts one case in which both sides to a legal dispute employed an

accountant as their expert witness. One accountant wished to speak to

the other with the expectation that the case could be settled. The

lawyer refused to countenance any contact. After six expensive days of

evidence the first accountant went into the witness box and the case was

settled immediately, leaving six days of lawyers' fees to be paid.

Lawyers 1, Justice 0.

The solution, according to Lord Morton, is to allow judges to break

out of their traditional role of refereeing a legal game and cut through

the legal waffle by adopting a much more interventionist role. This is

what happens in England, in the sheriff court in Scotland, and in

commercial cases in the Court of Session, which are much more

complicated than the run-of-the-mill case. If it can be done there, asks

Lord Morton, why not in the Court of Session generally? It is a question

which deserves a speedy answer.