The Gazette 1991

GAZETTE

DECEMBER 1991

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." 399

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

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.