Lord Rodger on tedious judgements in the Court of Session

The August issue of the Journal of the Law Society of Scotland published a speech by Lord Rodger of Earlsferry, one of the Scottish Law Lords, in which he criticises Court of Session opinions for “spend[ing] an enormous amount of time simply recounting the submissions of the parties”, which practice, he says, “does not serve any very useful purpose”.

width=120The comments come as part of a discussion of the Civil Justice Review being conducted by Lord Gill.  Lord Rodger says that the judges should instead “summaris[e] the arguments very much more shortly and concentrate[e] on the point on which they have decided the case”.  He thinks the practice to the contrary is a relatively recent one; but Scots Law News thinks that it has been typical since at least the late 1970s but that there have actually been some relative improvements in recent years.

Be that as it may, there are several other interesting remarks in Lord Rodger’s piece entitled “Civil justice: where next?”.  In particular he echoes comments that he made in the servitude of parking case, Moncrieff v Jamieson 2008 SC (HL) 1 (see here), when discussing whether or not courts should be regarded as a resource of last resort.  He says he is “rather suspicious of any approach which treats the courts and judges as something to be avoided if a substitute can be found.”  He goes on, referring to another recent House of Lords case from Scotland, J & H Ritchie Ltd v Lloyd Ltd 2007 SC (HL) 89

“Society actually needs litigation.  If you regard it as an evil, it is, at the very least, a necessary evil.  Unless there continues to be a stream of litigation with decisions of high quality from the courts, individuals and businesses will lack guidance on all kinds of everyday situations.  If I buy a piece of equipment and it does not work, but the seller offers to repair it, what are my rights?  A difficult point, made somewhat easier, it is to be hoped, by the determination of two Scottish businesses to carry their dispute about a piece of farm equipment worth about £3,000 all the way from Jedburgh Sheriff Court to the House of Lords.  The parties deserved not criticism for failing to settle, but the gratitude of anyone who advises consumers, from CABx onwards.”

He concludes this point with the comment that “the problem in Scotland is not that we have too many cases, but that we have too few.”

Amongst other points, Lord Rodger also argues that the Court of Session should retain a first instance function and not be a purely appellate body, and that the judicial appointments system should aim only to appoint “the very best people”.  “By that,” he adds, “I mean the most able, intellectually and legally, the most skilful members of the profession – whether men or women, black or white, straight or gay, sheriffs or practitioners, it does not matter, and no preference should be given to members of any group.”

The speech was delivered at a conference “Delivering excellence in Scotland’s civil justice system” held in Edinburgh on 20 June.