Megrahi: latest developments

Several items of interest on the Megrahi case emerged in the course of October 2009.

Taking the developments in reverse chronological order:

On 25 October 2009 it became public that a new police investigation into the Lockerbie bombing was under way, following fresh lines of inquiry developed as a result of a "desktop" or paper review of the evidence in the case and consultation of forensic scientists by the prosecution service.  It is not thought that the investigation will lead to a departure from the position that Mr Megrahi's conviction was correct; so presumably it is looking at the possible involvement of others. 

On 24 October The Scotsman carried a story detailing all the prisoner compassionate release cases since the beginning of devolution in Scotland – 25 altogether.  The Scotsman's line was that Megrahi had already outlived five in terms of the numbers of days survived after release.  For Scots Law News, there were other points of interest.  All of those released bar Megrahi and one other released on 18 September 2009 are dead.  Three of those released apart from Megrahi had been convicted of murder.  Seven were released by Lord Wallace, eleven by Cathy Jamieson and so far seven by Kenny MacAskill.  (Six prisoners were released on compassionate grounds between 1993 and 1997 (when, if you remember, we had a Conservative Government and a Secretary of State for Scotland actually running things.)  Seventeen of the post-1999 releases were because the prisoners in question had cancer.  The longest liver lasted 271 days after release: other relatively lengthy survivals included periods of 182, 173, 168, 119 and (twice) 98 days (all therefore somewhat in excess of the three-month period mentioned in the Scottish Government policy guidelines on the subject).  All but one of these relatively long survivors had cancer; the exception had AIDS. 

The Westminster Parliament debated the Megrahi release on 12 October.  The Foreign Secretary made clear what was already obvious, that the UK Government did not wish to see Megrahi die in a British prison because of the damage this would do to the country's economic interests.  But he insisted that no pressure had been placed on, or agreement reached with, the Scottish Government, whose sole responsibility the decision on the release had been.  The Scottish Affairs Committee at Westminster announced on 21 October that in the light of the Megrahi affair it would conduct an investigation of co-operation and communication between the UK and the Scottish Governments.

Lord Macphail

2009 has already seen a number of grievous losses to the law in Scotland, but on 23 October 2009 another was recorded with the death of Lord Macphail at the age of 71.

Iain Macphail had been ill for some time.  He was appointed to the Court of Session bench in 2005, relatively late after a long and distinguished career on the shrieval bench lasting over 30 years and culminating in his appointment as Sheriff Principal of Lothian & Borders in 2002.  He was also a Scottish Law Commissioner from 1990 to 1994.  He is the only Scots lawyer to be appointed to the prestigious Arthur Goodhart Professorship in Legal Science at the University of Cambridge, which he held in academic year 2001-2002.  He was also elected a Fellow of the Royal Society of Edinburgh in 2005.

Lord Macphail was a prolific author.  His books on Evidence (1987) and Sheriff Court Practice (1988, current edition 1998-2002) are authoritative and influential treatments which will stand as his monuments in the world of Scots law.  For many years a research paper on evidence which he wrote for the Scottish Law Commission in 1979 was the treatment of the subject in both academe and legal practice.  But he was much more than even these major works will show: a quiet, thoughtful and always courteous man without any of the arrogance that others with his accomplishments might have shown.  No doubt he was also a tough judge, nicknamed "No-bail Macphail", according to The Scotsman; but he stood four-square and eminent in the fine Scottish tradition of scholar-judges.

In the early 1990s Macphail was nominated for the degree of LLD by publications at Edinburgh University.  Some of the less learned members of the relevant university committee doubted whether a mere sheriff who had got his LLB from Glasgow could be scholar enough to merit the award of an LLD from such a university as Edinburgh, even if Macphail was actually one of its alumni as well (in Arts).  The then Dean of the Faculty of Law at Edinburgh, himself a Glasgow LLB, took to the vital committee meeting copies of Macphail's great works; and when the nomination came up for discussion, simply placed them one by one on the committee table.  The degree was duly awarded in 1992.

A nice obituary in The Times here.



Busy autumn in Parliament House

A number of interesting decisions have been coming out of the Court of Session since the new term began in September, for example on contract, constructive trusts, and even database rights.

This note will not attempt a detailed critique of the various decisions but simply draw attention to points of interest.  Exchange Communications Ltd v Masheder [2009] CSOH 135, a decision of Temporary Judge Morag Wise QC, is the one dealing with database rights.  The story was one of a departing employee who, it was claimed by the erstwhile employers, had extracted from their database contact details for a potential customer, and details of the telephony and related equipment to be offered to that customer along with prices and discounts.  The ex-employee had entered the employ of a competitor which had subsequently won the contract with the prospective customer.  The pursuers' averments did not however detail the precise means of the extraction which would constitute infringement of the database right, and the defender therefore argued that the case on this point was irrelevant, i.e. should not be allowed to go to proof.  Temporary Judge Wise QC, although thinking the issue "finely balanced" (para 45), sent the case for proof.  Quoting the leading ECJ cases on database right (British Horse Racing Board v William Hill [2005] 1 CMLR 15, Direct Media Publishing GmbH v Albert-Ludwigs-UF [2009] 1 CMLR 7 and Apis-Hristovich EOCD v Lakovda AD, 5 March 2009) for the proposition that the concept of "extraction" is to be approached widely, the judge noted: "The clear aim of the Regulations and the Directive they implement is to protect those who have applied time and resources and effort to collating data often with significant commercial importance" (para 48).  The case also discusses the enforceability of restrictive covenant and confidentiality clauses which were in the employee's contract.

Commonwealth Oil & Gas Co Ltd v Baxter [2009] CSIH 175 (fiduciary duties and constructive trusts) and R & D Construction Group Ltd v Hallam Land Management Ltd [2009] CSOH 128 (agreements to agree, contractual uncertainty, "best endeavours" clauses) have already been the subject of comment in other Edinburgh Law School blawgs here and here.  On the Baxter case, Scots Law News notes that the constructive trust claim actually failed, on the basis that the third party recipient was not guilty of "knowing receipt".  The Lord President says (at para 20) that "knowing receipt appears to me to be, primarily at least, a restitutionary remedy", although earlier he has said that the "foundation [of the doctrine] lies in the law of trusts" (para 16).  It is not clear how significant these remarks are meant to be, and whether there is a hint here that the approach should be through unjustified enrichment rather than trusts.

Lord Hodge refers to his analysis of "best endeavours" clauses in the R & D Construction case in his opinion in Beaghmor Property Ltd v Station Properties Ltd [2009] CSOH 133, which concerned breach of a "lock-out" agreement between two parties negotiating the sale of land in the Old Town area of Edinburgh.  The agreement required the seller to act in good faith and use "all reasonable endeavours" to enter the transaction with the purchaser.  It was conceded, under reference to the notorious English House of Lords decision Walford v Miles [1992] 2 AC 128, that the agreement to act in good faith was unenforceable, but Lord Hodge, applying his reasoning in the R & D case, that the rest of the clause might be: "where the parties intended the lock-out agreement to be a legally binding contract, the court should strive to give effect to their agreement", at least where the negotiations carried out under the agreement had themselves reached the stage where the parties were agreed on the essential terms of their deal (para 22).  He also held that the pursuers' claim to damages based on their loss of profit from their projected development and resale of the site (put at £4 1/2 million) was relevant for proof, rejecting an argument from the recent remoteness decision of the House of Lords, Transfield Shipping Inc v Mercator Shipping Inc [2009] 1 AC 61, that damages should be confined to wasted expenditure.  This last strikes Scots Law News as a fairly radical decision; legal systems recognising liability in pre-contractual negotiations usually confine damages to the reliance or negative interest rather than the expectation or performance one. 

Still in the area of contract formation, the case of Park Petititoners [2009] CSOH 122 attracted media attention and some critical comment from the legal profession (or at least solicitors' firm Tods Murray).  The essence of the case is whether in a contract requiring formal writing it suffices for the conclusion of a contract that the formal offer and acceptance have been faxed by the parties to each other.  Temporary Judge Malcolm Thomson QC held not, rejecting arguments that the requirements of form did not apply to the means by which parties communicated formal documents to each other.  The Tods Murray news release on Park, made although the firm does not seem to have been involved in the case, says that the decision runs counter to established practice amongst solicitors: "our culture dictates immediacy and we have all come to rely on and respect fax and email communications … [T]his case means that it will not be possible to conclude a transaction online and as well as increasing the length of time it takes to conclude a deal, it adds a very real nuisance factor.  Speed is so often the essence in these deals as buyers or sellers are working to very precise timescales or financial imperatives."  Scots Law News would add the comment that if no contract was concluded by the faxed exchange of missives, it is also not clear that one was achieved by the subsequent posting of them either.  It seems that the posted offer did not arrive with the offeree until 3 September 2007, while the posted acceptance arrived with the offeror on 1 September.  Even if the postal acceptance rule applies, the offer which must necessarily precede any acceptance was not effective until communicated on 3 September, and thus the purported acceptance which arrived before the offer must be ineffective too.  This reasoning of course exposes further the artificiality of not giving the faxed communication any legal effect even as a communication.

Finally, a nice case in which the doctrine of forum non conveniens was unsuccessfully argued by two defenders sued by the Royal Bank of Scotland in the Court of Session on guarantees which the former had given in support of the indebtedness of their company (Royal Bank of Scotland v Davidsons [2009] CSOH 134).  The company  traded from Berwick-upon-Tweed, by rights really a Scottish town but over 500 years lying within the jurisdiction known as England & Wales; the defenders however were domiciled in Scotland, although precisely where is not revealed.  When the bank raised its action on the guarantees in Scotland, the defenders pleaded forum non conveniens; that is, that the action should be determined in the English courts; amongst other things the guarantees bore to be governed by English law.  Lord Drummond Young gives a useful overview of the forum doctrine before rejecting the argument.  The company was not a party to the action, while the bank which had dealt with it was prepared to litigate in Scotland; so there was no inconvenience to the parties, given that the defenders were domiciled in Scotland.  The guarantee being subject to English law was a significant but not decisive factor; if it were, the doctrine would apply wherever a contract was subject to another legal system, and that had never been the case.  The defenders wanted to plead a defence based on misrepresentation; but, said Lord Drummond Young, "the basic concepts used in dealing with misrepresentation … dod not differ significantly between Scots and English law … [E]ven to the extent that English law differs from Scots law, a Scottish judge should not have great difficulty in understanding expert evidence on the matter" (para 9). 

Poetry and art in the UK Supreme Court

It appears from the UK Supreme Court website that the Justices of the court commissioned a poem from former Poet Laureate Andrew Motion to mark its opening.

The poem goes as follows:

Tides tumbled sand through seas long-lost to earth;
Sand hardened into stone – stone cut, then brought
To frame the letter of four nations’ laws
And square the circle of a single court.

Here Justice sits and lifts her steady scales
Within the Abbey’s sight and Parliament’s
But independent of them both. And bound
By truth of principle and argument.

A thousand years of judgment stretch behind –
The weight of rights and freedoms balancing
With fairness and with duty to the world:
The clarity time-honoured thinking brings.

New structures but an old foundation stone:
The mind of Justice still at liberty
Four nations separate but linked as one:
The light of reason falling equally.

width=230The poem appears to refer obliquely to the Supreme Court emblem or logo (left), which is explained thus on the website:

"The emblem combines four heraldic elements, equally represented in the design, reflecting the jurisdictions within the United Kingdom:

England: a symmetrical five-petalled wild rose, with stalk and leaves, an English symbol since the Tudor dynasty
Wales: the green leaves of a leek, deriving from the medieval legend that St David ordered his Welsh soldiers to wear leeks on their helmets during a battle against the Saxons
Scotland: a purple thistle, associated with the tradition that an early Scottish army was saved when barefooted Viking invaders stepped on prickly thistles in the dark, crying out in pain and waking the defenders
Northern Ireland: a light blue five-petalled flax flower, representing the linen-weaving industry which was so valuable that nineteenth century Belfast was known as ‘Linenopolis’

These four national elements are embraced by an almost-circular frame representing both Libra, the scales of justice, and Omega, symbolising the final source of justice for the United Kingdom.

At its most formal level, the Royal Crown surmounts the emblem, as the Monarch is the source of The Supreme Court’s authority."

width=260All good stuff (although not quite perhaps in the same league as the Albie Sachs gallery otherwise known as the Constitutional Court of South Africa).  The artwork in the Supreme Court is, one suspects, mostly a hangover from the building's past as the Middlesex Guildhall, although in Court 1 a pop art carpet by Sir Peter Blake (who a long time ago designed the cover of the Beatles' Sergeant Pepper album) covers the floor in a pattern again evoking the four nations (above right).  But one fears that in these straitened times it may be a while before a more fully representative selection of art (modern and not necessarily portraiture or indeed paintings?) from each of the four nations becomes a possibility for the court.

A final thought: what becomes of the poem and the emblem if, following Professor Neil Walker's review of the appeal from Scotland to the Supreme Court, the Scottish jurisdiction disappears?

When foreign law isn’t argued, what do you do?

The case of BJZ, Petr [2009] CSOH 136 is an interesting decision by Lady Smith in the law of child abduction, and adds to the jurisprudence on the Hague Convention on Child Abduction as the petitioner is a public authority, the Dutch Youth Welfare Organisation petitioning for return of a child under the Convention.

A Hague Convention application is usually based on a court order for custody. However, in this case, Lady Smith rejects the purported order presented to the court as it was not properly authenticated – see paras [7] to [9].

Lady Smith notes that the purported order refers to provisions of the Dutch Civil Code, but not in a manner that explains the import of the order – and to understand the provisions she notes that in order to examine the provisions of the Code she had to resort to research on the internet (para [10]) as no explanation on the provisions of Dutch law was forthcoming from the petitioners.

UK Supreme Court opens; Lord Gill’s report on civil justice

Today, 1 October 2009, sees the opening of the new UK Supreme Court, which follows hard on the heels of the publication of the report of the Scottish Civil Courts Review chaired by Lord Justice Clerk Gill on 30 September.

Here is the report's synopsis of its findings and recommendations:

"Background to the Review
In February 2007 the then Minister for Justice, Cathy Jamieson, asked the Lord Justice Clerk, the Rt Hon Lord Gill, to undertake a wide ranging review of the civil courts system in Scotland. The remit of the Review was as follows:
To review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to

the cost of litigation to parties and to the public purse;

the role of mediation and other methods of dispute resolution in relation to court process;

the development of modern methods of communication and case management; and

the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts;
and to report within 2 years, making recommendations for changes with a view to improving access to civil justice in Scotland, promoting early resolution of disputes, making the best use of resources, and ensuring that cases are dealt with in ways which are proportionate to the value, importance and complexity of the issues raised.
The Scottish Executive’s report ‘Modern Laws for a Modern Scotland’, which can be found at, explained the background to the decision to embark upon the review. It set out the key issues which the Review was expected to address and the principles that the Executive considered should underpin its work.
The Project Board, the Policy Group and the Review Team
The Review began its work in April 2007, when the Lord Justice Clerk was joined on the Project Board by:

The Hon Lord McEwan;

Sheriff Principal James Taylor, Sheriff Principal of Glasgow and Strathkelvin; and

Sheriff Mhairi Stephen, Sheriff at Edinburgh.
The Board was assisted by a Policy Group comprising individuals with particular knowledge and expertise in various aspects of civil justice. Administrative and research support was provided by the Review Team headed by Lindsey Nicoll, as Secretary to the Review. Further details may be found in the Report, Chapter 1.
In November 2007, the Review issued a wide-ranging Consultation Paper and received over 200 responses, from: the legal profession; local government; voluntary organisations; insurers; trades unions; and others. Apart from where confidentiality was requested, all responses to the consultation, as well as the Consultation Paper itself, may be found on the Civil Courts Review website at The Board and Review Team also held a number of meetings with interest groups, practitioners, court managers and the judiciary, and undertook fact finding visits to England and Ireland where they visited courts and met key players in the civil justice systems of these jurisdictions.
Principles underpinning the Review
The Review adopted as its overarching aim the goal of ensuring that the civil courts provide the public with a high quality system of civil justice. The principles by which such a system should operate can be summarised as follows:

it should be fair in its procedures and working practices;

it should be apt to secure justice in the outcome of disputes;

it should be accessible to all and sensitive to the needs of those who use it;

it should encourage early resolution of disputes and deal with cases as quickly and with as much economy as is consistent with justice;

it should make effective and efficient use of its own resources, allocating them to cases in proportion to the importance and value of the issues at stake; and

it should have regard to the effective and efficient employment of the resources of others.
It is essential that the courts have at their command sufficient judicial, administrative and physical resources to meet the demands upon them in a manner consistent with the above principles.
The courts, as public authorities, must act in a manner compatible with the European Convention on Human Rights. This too has underpinned the Review’s work, and the Review considers that all its recommendations meet that test.
The current system
A number of key themes emerged from the consultation. These are discussed in detail in the Report, in particular in Chapter 2, to which reference should be made.

The pressure of criminal business. Civil cases are routinely deferred or interrupted to make way for criminal business, causing unacceptable delay and expense. Respondents complained of lengthy waiting periods before cases were heard, and of delays in issuing judgments in the Court of Session. (Chapter 2, paragraphs 4-10)

The need for a greater degree of judicial specialisation. Practitioners and court users were strongly in favour of a greater degree of specialisation in the sheriff court, principally in family law, commercial law, personal injury, consumer and housing cases. The current system makes specialisation and judicial continuity difficult to achieve. (Chapter 2, paragraphs 11-12)

The hierarchy of the courts and appropriate use of judicial resources. The jurisdiction of the Court of Session and sheriff court largely overlap, with parties free to choose where to litigate regardless of the importance or complexity of the case. With the exception of small claims and summary causes there is an unrestricted right of appeal to the Inner House. The current allocation of business is wasteful and inefficient, and does not promote effective delivery of justice. (Chapter 2, paragraphs 13-16)

Over reliance on temporary resources. Part-time and temporary members of the judiciary increasingly form an integral part of the court programme in both the Court of Session and sheriff courts. There were complaints of lack of experience and commitment. There were also concerns as to the appropriateness of a practising solicitor or advocate both appearing and sitting in a judicial capacity in the very same court. (Chapter 2, paragraph 17)

The need for effective case management and reformed procedures. The overwhelming majority of respondents thought the court, rather than the parties, should control the conduct and pace of litigation. There was support for greater case management powers and sanctions for parties who behave unreasonably or fail to comply with court rules. (Chapter 2, paragraphs 18-21)

Investment in information technology. Respondents were strongly of the view that the court system is currently not taking full advantage of the opportunities that information technology offers to improve the efficiency of the conduct and management of civil business. (Chapter 2, paragraph 22)

Party litigants and a new forum or method for dealing with lower value cases. For litigants who do not have legal representation, even those court procedures designed with them in mind may be inaccessible. Respondents 3
also noted that party litigants may cause unnecessary expense and delay through unfamiliarity with procedures or disruptive behaviour and that firmer measures are sometimes required to deal with those who pursue claims without merit or behave unreasonably. (Chapter 2, paragraphs 23-24)

Problems relating to the cost and funding of litigation. Respondents drew attention to the cost of litigation and observed that only those with considerable wealth or who are eligible for legal aid can afford to litigate. There were concerns about the shortfall between what clients have to pay their legal advisers and what they can recover in expenses from the other party, and also about the taxation of judicial accounts. (Chapter 2, paragraphs 25-28)
The Review proposes a package of structural and functional reforms to address the problems identified. These are discussed in detail in the Report, which contains a full list of recommendations and to which reference should be made. The main recommendations are summarised below:
Structure of civil court system (Chapter 4)

The Scottish Court Service should plan for the elimination of part-time judicial resources, which should be available for emergencies only (see paragraph 30).

A system should be introduced whereby a number of sheriffs in each sheriffdom should be are designated as specialists in particular areas of practice, including solemn crime, general civil, personal injury, family and commercial (see paragraphs 64, 66).

A national Sheriff Appeal Court should be established, to hear summary criminal appeals and civil appeals from district judges (see below) and sheriffs. The Report goes on to make detailed recommendations on the structure and composition of the new court (see paragraph 79).

The privative (i.e. exclusive) jurisdiction of the sheriff court should be increased, from its current level of £5,000 to £150,000 (see paragraph 123).

A specialist personal injury court should be created, based at Edinburgh Sheriff Court but with jurisdiction throughout Scotland. Pursuers will thus have the choice between local access to justice or the advantages of a sheriff court with an all-Scotland jurisdiction (see paragraph 154).

A new judicial office should be created, that of district judge. A district judge would sit in the sheriff court and hear summary criminal business and civil claims of modest value (see paragraph 176). 4
A new case management model (Chapter 5)

A docket system should be introduced in the Court of Session and sheriff court. A case would be allocated to a particular judge or sheriff, who would deal with all hearings in that case (see paragraphs 44, 45, 62, 72, 73).

With certain exceptions, all actions should be subject to judicial case management. A case management hearing should be fixed shortly after defences are lodged. It would normally take place by means of a telephone conference call. The Report makes detailed provision for the matters to be dealt with at the case management hearing, such as the exchange of information and the focussing of issues by parties’ representatives. The main exception would be personal injury actions, for which special case flow management provisions have already been made (see paragraphs 48, 74, 77-81).

In the sheriff court actions will be transferred to a court in which a sheriff with the relevant specialism is resident. Procedural business will be conducted by email, telephone, video conferencing or in writing (see paragraph 61).

District judges will have jurisdiction to hear housing actions, actions for payment of £5,000 or less, and referrals and appeals from children’s hearings, and concurrent jurisdiction with sheriffs in family actions (see paragraph 71).

There should be a single new set of rules for cases for £5,000 or less (called ‘the simplified procedure’). The new rules should be based on a problem solving or interventionist approach in which the court should identify the issues and specify what it wishes to see or hear by way of evidence or argument. The rules should be written in plain English and drafted for party litigants rather than legal practitioners (see paragraphs 125-127, 131).

The Scottish Government should develop and extend in-court advice services, including services offering specialist help in housing matters, as part of a broader strategy to improve and co-ordinate the provision of publicly-funded civil legal assistance and advice generally (see paragraph 147).
Information technology (Chapter 6)

The Report supports the increased use of IT and makes detailed recommendations including: the use of email as a means of communicating with the courts and the judiciary; video and telephone conferencing; and the digital recording of evidence (see paragraph 84).
Mediation and other forms of dispute resolution (Chapter 7)

The Report recognises the value of Alternative Dispute Resolution, and makes proposals such as a free mediation service for claims under the new simplified procedure (see paragraphs 37-39).
Facilitating settlement (Chapter 8)

There are detailed recommendations on the compulsory use in personal injury cases of pre-action protocols aimed at ensuring early exchange of information and enabling cases to be settled early, fairly and, if possible, without litigation (see paragraphs 33, 34, 53).

Either party should be able to make a formal offer in settlement of a claim (currently only defenders can do so). The Report discusses the implications for expenses that may follow from refusing such an offer (see paragraphs 85-91).
Enhancing the court’s case management powers (Chapter 9)

The guiding principle of the rules of court should be that their purpose is to provide parties with a just resolution of their dispute in accordance with their substantive rights, in a fair manner and with due regard to economy, proportionality and the efficient use of the resources of the parties and of the court (see paragraph 13).

The Report makes recommendations for enhancing the court’s case management powers, including early disclosure of documents (see paragraph 38), greater use of witness statements in place of oral testimony (see paragraph 47), abbreviated written pleadings (see paragraph 60) and the appropriate use of expert evidence (see paragraphs 78-91).

Either party should be able to ask the court to dispose of a case summarily (i.e. without proceeding to a full hearing) if the other party has no real prospect of success and there is no other compelling reason why the case should proceed (see paragraph 103).

There are recommendations for efficient management of court time, such as requiring parties to agree a timetable for presenting evidence (see paragraph 117) and the greater use of written arguments (see paragraphs 119, 126).

The court should have a general power to impose sanctions for failure to comply with rules or court orders. An extensive list of sanctions is proposed, including granting decree against the defaulting party, dismissing the case or making orders in relation to expenses (see paragraphs 146, 148). 6

The court should have power to find all those with rights of audience (solicitors, advocates, etc.) personally liable for expenses occasioned by their own fault, or where guilty of an abuse of process (see paragraph 149).

The Report recommends enhanced powers for the courts to make orders restricting the ability to litigate of parties who persist in conduct amounting to an abuse of process (see paragraph 190).
Judgments (Chapter 10)

Recommendations include an online register of cases in which judgment has been outstanding for more than three months: the judge should be required to provide an explanation for the delay (see paragraph 35).
Access to justice for party litigants (Chapter 11)

There are recommendations for the promotion of public legal education (see paragraph 8), improved online provision of information for members of the public (see paragraphs 22, 24), the development of in-court advice services (see paragraphs 36-38) and the rights of lay representatives (or ‘McKenzie friends’) of party litigants (see paragraph 53).
Judicial review and public interest litigation (Chapter 12)

The current law on title and interest to sue is overly restrictive and should be replaced by a single test, namely, whether the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings (see paragraph 25).

Petitions for judicial review should be brought promptly and, in any event, within a period of three months (see paragraphs 38-39).

A requirement to obtain leave to proceed with an application for judicial review should be introduced. The test should be whether the petition has a real prospect of success (see paragraphs 51-52).

The court should have power to make special orders in relation to expenses in cases raising significant issues of public interest. This could include an order made at the outset or during the course of proceedings to the effect that the petitioner would not be liable for the expenses of the action, even if unsuccessful, or that the expenses of the successful party will be capped at a particular amount (see paragraph 73).
Multi-party actions (Chapter 13)

The Report recommends that there should be a special procedure for dealing with multiple claims which give rise to common or similar issues of fact or law, for example, litigation arising out of a mass disaster or liability for defective products. Detailed recommendations are made regarding the features that such a procedure would have, including special funding arrangements for multi-party actions to be administered by the Scottish Legal Aid Board (see paragraphs 64-119).
The cost and funding of litigation (Chapter 14)

Detailed recommendations are made on the recovery of expenses. The cost of litigation should form part of the remit of the proposed Civil Justice Council for Scotland (see below); pending which the Scottish Government should set up a Working Group to look at the issue of expenses (paragraphs 50-67).

The offices of Auditor of the Court of Session and sheriff court auditors should become salaried posts, subject to the usual rules regarding public appointments. The Report makes further recommendations on the qualifications, role and remuneration of auditors (see paragraph 83).

There are recommendations aimed at improving the system for taxing accounts, such as greater use of IT (see paragraph 85).

While no recommendations are made on speculative fee arrangements pending the outcome of a review in England and Wales, it is recommended that this issue should urgently be addressed by the proposed Working Group on Judicial Expenses (see paragraphs 125-127).

The Scottish Government should explore with insurance providers the scope for improving public awareness and increasing voluntary uptake of legal expenses insurance (see paragraph 140).
A Civil Justice Council for Scotland (Chapter 15)

A Civil Justice Council for Scotland should be established with responsibility for drafting the rules of court. Its remit would be similar to that of this Review: to keep under review the provision of civil justice by the courts in Scotland, including matters such as the structure of the courts, their jurisdiction, procedures and working methods, and the cost of litigation. The Civil Justice Council for Scotland would monitor the implementation of this Report; receive representations and proposals for reform; have the power to commission research; and keep abreast of reforms and developments in other jurisdictions. In this way, reform and improvement of the civil justice system would be an ongoing process (see paragraphs 51-59).

The Report is published in two volumes. Volume 1 contains the Chairman’s introduction, an introduction to the Review (chapter 1), a summary of issues identified and recommendations made (chapter 2), a short overview of the structure of the civil court system in Scotland, which is aimed at lay readers (chapter 3) and chapters 4 to 9 with their annexes. Volume 2 contains chapters 10 to 15 with their annexes, a list of meetings held during the Review, a copy of the report by the Rt Hon Lord Penrose on the business of the Inner House and a bibliography. For ease of reference, both volumes contain the full list of recommendations made by the Review and contained in the Report.  The Report has been presented to the Cabinet Secretary for Justice, Kenny MacAskill MSP. It will be for the Scottish Ministers to decide how to take forward the recommendations that the Review has now made."

Comments once we have digested the two volumes.  But we can say that Lord Gill's introduction makes for trenchant reading.