Justice v Compromise - Consultation on the Civil Courts Review (Scotland) : "Virtual Court"/this blog!!
Today, the Consultation Paper on the Civil Review in Scotland closed.
Consultation Paper on the Civil Court Review (Scotland)
Who's involved
My reponse (which I have asked to be published) is downloadable Click Here
Excerpt:
"7. To what extent should the court control the conduct and pace of litigation?
Judge should always be in control – IT should make this efficient by (a) automatically issuing contempt orders / perversion/obstruction orders (ie automation does not allow for discretion – a lot of nonsense would be stopped overnight and would ensure equality before the law); if parties wanted to go fast, then the sooner both sides upload their data, the sooner the judge can bring forward the next case marshalled deadline to comply with his first available gaps in his itinerary where other cases have settled or been resolved.
Pace is either at the the direction of the Judge or can be speeded up by the parties acting responsibly in accordance with the Judge’s overall itinerary.
However, the last paragraph of clause 5.2 the test of proportionality … “ causes me concern: proportionality is I consider superceded by article 6 of the Human Rights Act. Everyone has the right to a fair trial – it is therefore not about costs or resources or degrees of knowledge of the parties to deal with legal proceedings or unmeritorious, frivolous or vexatious claims it is about “Justice” of which Article 6 of the HRA 1998 is fundamental.
The judiciary may intervene in a case in one direction only – progressively (law applied), not digressively (law not applied) or regressively (non-law) mediation, for the sole purpose of achieving justice and thereby establishing democracy. If the parties choose to settle through court process prior to trial then that resolves the dispute to a degree.
The issues of proportionality, cost and mediation as expunged by the Woolf Report are in essence anti-judiciary; anti-democratic; deficient in intellect; abusive of human rights potentially nazi; Jewish sympathetic – money; unjust law; nonsense. A judge makes parties equal through participation purposive to justice. Need to not follow the Woolf Reforms which are a travesty – the role of a judicial system is to apply the rule of law, not to avoid doing so or create a two tier system in society. A justice system is meant to be accessible to the ordinary man in the street for his benefit not for a few who can afford it or a playground for lawyers / barristers. The reasonable man on the Clapham Omnibus is the ordinary standard of reasonableness. If the judicial system cannot accommodate that degree of intellect and participation then it is not fit for purpose. Any judge who thinks otherwise should depart the bench.
However, the quote on page 47 is utter rubbish and I find it hard to believe that the judiciary “admit” to stopping a case. Justice is an inherent power for which the judge is guardian. This statement admits that a judge is incompetent, not wise, not intelligent and begs the question why is the person a judge. Two parties bring the action one wins, one loses, one is truthful, the other lies, avoids, covers up. If the judge is powerless then remove from the bench. If the judge is powerless then he is probably bent.
A judge has an inherent power to bring the case to an end by “reason” which is “natural law”: there is a natural and logical flow to circumstances (cause) to consequences (effect) – they are not reversible.
Concerning the second quote on page 47 a judge is meant to “discover” the law not create it, else it is likely to be unjust or bad law.
Clause 5.11 threw up something interesting … A sheriff’s statutory powers only limit the exercise of the inherent jurisdiction to the extent that it cannot be exercised in a way that is inconsistent with statute law or statutory rules of court”.
I therefore find this clause inconsistent with clause 5.23 and a draft Act of Sederunt for mediation rules … as presumably this draft is inconsistent with the HRA 1998 and Article 6 and the right to a fair trial – the HRA 1998 is statute law and must be deemed to be embedded into statutory rules of court via article 6 : therefore to my mind, you cannot alter the Act of Sederunt to the detriment of the overriding objective of article 6 of the HRA 1998. Legal Opinion and public debate is necessary on this issue.
The Judge should be interventionalist but solely for the purpose of applying the rule of law and thereby ensuring article 6 of the HRA 1998 is fundamentally achieved, ie Justice thereby democracy. Anything else, is utter nonsense and deficient in intellect. Also case precedent (Halsey 2004).
Very pleased with clauses 5.29 to 5.35 and moreorless 5.36 to 5.50."
This paper also discussed the "Virtual Court" - my blog is an example of one concerning the Lesley McDade v Masons and Lesley McDade v S J Berwin & Co and others below.
The other pertinent issue is why are there no posts in Jurisprudence in the Scottish Government and/or Scottish Judiciary - it is surely not just meant to be an academic subject!!!!
Participants in this consultation paper if requesting their response be published will be featured at this e-address: http://www.scotcourts.gov.uk/civilcourtsreview/index.asp
Consultation Paper on the Civil Court Review (Scotland)
Who's involved
My reponse (which I have asked to be published) is downloadable Click Here
Excerpt:
"7. To what extent should the court control the conduct and pace of litigation?
Judge should always be in control – IT should make this efficient by (a) automatically issuing contempt orders / perversion/obstruction orders (ie automation does not allow for discretion – a lot of nonsense would be stopped overnight and would ensure equality before the law); if parties wanted to go fast, then the sooner both sides upload their data, the sooner the judge can bring forward the next case marshalled deadline to comply with his first available gaps in his itinerary where other cases have settled or been resolved.
Pace is either at the the direction of the Judge or can be speeded up by the parties acting responsibly in accordance with the Judge’s overall itinerary.
However, the last paragraph of clause 5.2 the test of proportionality … “ causes me concern: proportionality is I consider superceded by article 6 of the Human Rights Act. Everyone has the right to a fair trial – it is therefore not about costs or resources or degrees of knowledge of the parties to deal with legal proceedings or unmeritorious, frivolous or vexatious claims it is about “Justice” of which Article 6 of the HRA 1998 is fundamental.
The judiciary may intervene in a case in one direction only – progressively (law applied), not digressively (law not applied) or regressively (non-law) mediation, for the sole purpose of achieving justice and thereby establishing democracy. If the parties choose to settle through court process prior to trial then that resolves the dispute to a degree.
The issues of proportionality, cost and mediation as expunged by the Woolf Report are in essence anti-judiciary; anti-democratic; deficient in intellect; abusive of human rights potentially nazi; Jewish sympathetic – money; unjust law; nonsense. A judge makes parties equal through participation purposive to justice. Need to not follow the Woolf Reforms which are a travesty – the role of a judicial system is to apply the rule of law, not to avoid doing so or create a two tier system in society. A justice system is meant to be accessible to the ordinary man in the street for his benefit not for a few who can afford it or a playground for lawyers / barristers. The reasonable man on the Clapham Omnibus is the ordinary standard of reasonableness. If the judicial system cannot accommodate that degree of intellect and participation then it is not fit for purpose. Any judge who thinks otherwise should depart the bench.
However, the quote on page 47 is utter rubbish and I find it hard to believe that the judiciary “admit” to stopping a case. Justice is an inherent power for which the judge is guardian. This statement admits that a judge is incompetent, not wise, not intelligent and begs the question why is the person a judge. Two parties bring the action one wins, one loses, one is truthful, the other lies, avoids, covers up. If the judge is powerless then remove from the bench. If the judge is powerless then he is probably bent.
A judge has an inherent power to bring the case to an end by “reason” which is “natural law”: there is a natural and logical flow to circumstances (cause) to consequences (effect) – they are not reversible.
Concerning the second quote on page 47 a judge is meant to “discover” the law not create it, else it is likely to be unjust or bad law.
Clause 5.11 threw up something interesting … A sheriff’s statutory powers only limit the exercise of the inherent jurisdiction to the extent that it cannot be exercised in a way that is inconsistent with statute law or statutory rules of court”.
I therefore find this clause inconsistent with clause 5.23 and a draft Act of Sederunt for mediation rules … as presumably this draft is inconsistent with the HRA 1998 and Article 6 and the right to a fair trial – the HRA 1998 is statute law and must be deemed to be embedded into statutory rules of court via article 6 : therefore to my mind, you cannot alter the Act of Sederunt to the detriment of the overriding objective of article 6 of the HRA 1998. Legal Opinion and public debate is necessary on this issue.
The Judge should be interventionalist but solely for the purpose of applying the rule of law and thereby ensuring article 6 of the HRA 1998 is fundamentally achieved, ie Justice thereby democracy. Anything else, is utter nonsense and deficient in intellect. Also case precedent (Halsey 2004).
Very pleased with clauses 5.29 to 5.35 and moreorless 5.36 to 5.50."
This paper also discussed the "Virtual Court" - my blog is an example of one concerning the Lesley McDade v Masons and Lesley McDade v S J Berwin & Co and others below.
The other pertinent issue is why are there no posts in Jurisprudence in the Scottish Government and/or Scottish Judiciary - it is surely not just meant to be an academic subject!!!!
Participants in this consultation paper if requesting their response be published will be featured at this e-address: http://www.scotcourts.gov.uk/civilcourtsreview/index.asp
posted by Lesley McDade at 7:19 pm
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