John Sturrock KC

I was interested to read Andrew Stevenson’s article in these pages in which he raised concerns about proposed changes to court rules and, in particular, the apparent erosion of “the principle that litigation in Scotland is adversarial”. He comments that “[c]ase flow management has been infiltrating the courts” for 20 years, introducing “pro-active control by the judge or sheriff, at odds with conventional adversarial procedure in which the pace and presentation of litigation was almost entirely driven by agents or counsel.” Mr Stevenson suggests that “[a]dopting rules which so obscure the boundaries, roles and responsibilities lying between inquisitorial and adversarial procedure would be a recipe for complaints by clients.”

Just a week or so earlier, I had come across a paper entitled Responding to Change which I gave at a Worldwide Advocacy Conference in London in July 1998. My theme then was the need to face change positively, as opportunity rather than threat, to avoid being by-passed by others. I suggested that there were two, perhaps related, developments which pointed to a trend away from the traditional adversarial process with which we had all become so familiar. The first of these was ‘the changing role of the judge in litigation’ which led me to discuss the topic of ‘The Adversarial Culture and the Role of the Judge’.

After mentioning the well-known observations about the (very limited) role of the judge by Lord Justice Clerk Thomson in the 1962 case of Thomson v Glasgow Corporation, I commented on the move from the adversarial process in many jurisdictions to a “more interventionist, managerial role for judges” and that this arguably represented a “fundamental shift”, raising “major questions of principle”. I was careful not to argue that this shift was wrong; my concern back in 1998 was the implications for traditional advocacy and, in my role as the first Director of Training and Education at the Faculty of Advocates, what it might mean for advocacy training, at that time in its infancy.

I refer to this not so much to indicate some prescience on my part but to recognise that what we think of as new may often in fact be old hat. Plus ça change… Over the summer, I have undertaken one of those periodic clear-outs of old papers. It is fascinating to discover how often we seem to reinvent the wheel, forgetting or ignoring what was proposed, discussed or written about years before. Here is a front-page headline in the Sunday Times magazine, dated February 26 1989: “The World is dying: What are you going to do about it?”. An accompanying campaign discussed “The Crisis of Life on Earth” with the rubric: “The earth is sick and dying. So too, is the human race. For we are systematically destroying the fabric of the planet which gave us life….”

We have known about the perils of climate change and environmental degradation for decades and yet… we are still agonising over what to do about it. And Rome really is burning. Against that reality, proposed changes to court rules in Scotland pale a little into insignificance. However, the point is worth making: denial, resistance or simple inertia are a real handicap in any situation when change around us is profound and fast-moving. This surely applies to courts and civil justice just as it applies to our natural environment.

The second development identified in my 1998 paper was ‘Alternatives to Litigation’, in which I speculated that “many parties nowadays” may seek a different approach from the adversarial system. Thus was beginning another journey…

John Sturrock KC is a mediator. This article first appeared in The Scotsman.