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Report by the Research Working Group on the Legal Services Market in Scotland

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Chapter 9 Rules of court : curators and reporters

Introduction

9. The Group considered that certain rules of court could have potential implications for the Scottish legal services markets and thus be relevant to the particular aims of the research

  • to identify restrictions, whether deriving from statute, professional rules or custom and practice, which might have the effect of preventing, limiting or distorting competition in the different Scottish markets.
  • to identify access to justice, public interest and consumer protection factors that might justify such restrictions and to evaluate whether the restrictions were proportionate to their purpose.

9.1 Certain rules of court are a factor in the taxation process or raise wider consumer and interests of justice interests. Moreover, what the courts do has a bearing on the market, the legal profession and the legal costs which litigants can incur. The resourcing of the Courts and the organisation of Court business can result in delays and additional costs to litigants, for example when a case cannot be heard on the date when it is expected to be heard because there are insufficient judges. The Group looked at rules of court/Acts of Sederunt dealing with court expenses and taxation, rights of audience and the fees of solicitors and advocates and also examined how judicial fees were set. These matters are covered in chapter 10 which deals with legal fees and taxation.

9.2 The Group's scrutiny of rules of court/Acts of Sederunt otherwise identified a transparency issue relating to the appointment of curators and reporters by the Court and a consumer protection issue with regard to the charges made for their reports and other work.

Curators ad litem

9.3 The Court has a power at common law to appoint a curator ad litem in any case where a person who does not have legal capacity ( e.g. by reason of youth or mental disorder), is a party to any legal process and does not have a guardian, or has a guardian with an adverse interest. The function of a curator ad litem is to protect or safeguard the interests of the ward so far as those interests are affected by the particular litigation. The curator ad litem has no wider powers in relation to the ward or the ward's property.

9.4 Specific statutory provision is made for the appointment of a curator ad litem in the following circumstances:

  • in an action of divorce or separation where it appears to the court that the defender is suffering from a mental disorder 98;
  • to protect the interests of a child who is the subject of proceedings for adoption or freeing for adoption 99;
  • to protect the interests of a child in any application for a parental responsibilities order 100.

9.5 The Ordinary Cause Rules 1993 are generally silent as to the appointment of curators ad litem to adults in civil actions, the only exception being rule 33.16 which provides that in an action of divorce or separation where it appears to the court that the defender is suffering from a mental disorder, the sheriff can appoint a curator ad litem to the defender. The rule also states that the pursuer should be responsible in the first instance for payment of fees and outlays of the curator ad litem incurred during the period from his appointment until he either lodges a minute stating that he does not intend to lodge defences; or he decides to instruct the lodging of defences or a minute adopting defences already lodged; or he is discharged. While that might be seen as placing an unfair burden on the pursuer, the curator had to be paid and if the pursuer was successful the fee may be recoverable. On the other hand that could be argued to affect consumer interests. Despite the defender being mentally incapable, it is the pursuer who is held responsible for the costs of the curator ad litem. It could be argued that it would be equitable for the defender to be held responsible for such costs.

9.6 The Law Society of Scotland noted that if the defender was suffering from a mental disorder and was not capable, he/she could not be responsible for the costs of appointing a curator ad litem. As it was the pursuer who had brought the action, the Group agreed that the rule was equitable.

9.7 The wording of Rule 33.16 is reflected in Rule 39.1, which deals with the appointment of curators to children in any civil action. Rule 39.1(2) required the pursuer (again "in the first instance", unless the court otherwise directed) to be responsible for the fees and outlays of the curator ad litem up to the occurrence of certain events. The nature of the discretion conferred by these rules allows the cost-burden to be shifted to the opponent. In some cases, this can mean that a legally aided defender, rather than a privately paying pursuer, becomes responsible for the curator's costs. If it is not possible to recover those costs from the opponent, this will be an irrecoverable cost to the Scottish Legal Aid Fund, unless the sums can be clawed back from any property recovered or preserved by the successful legally aided party.

9.8 The rule is silent as to what was expected of the curator, although it was understood that many curators would prepare a report more akin to that envisaged by rule 33.21, discussed below. However, a perceived lack of focus in interlocutors appointing a curator could result in the curator's involvement in functions far beyond reporting to the court including therapeutic measures such as mediating between the parties or the supervision of contact arrangements. That raised issues as to the appropriateness of certain work undertaken by a curator and could have serious cost implications for privately paying clients or the Fund (and, by extension, the assisted person) as neither the court nor the Scottish Legal Aid Board has control over the cost of the work carried out by curators (or reporters, below).

9.9 These functions tended to be carried out in most courts by solicitors acting as an officer of the court. It was noted that the role of curator was quite separate and distinct from that of a solicitor in that a curator was not representing the child and was not providing professional legal services. The skills required of a curator are not solely attributable to solicitors. In addition, there is also a cost implication. The Scottish Legal Aid Board pointed out that solicitors who performed these functions tended nonetheless to charge at rates based on the judicial Tables of Fees or, formerly, the general table. Since the general table had been withdrawn, and there was no prescribed Table of Fees, fees notes continued to be lodged based on the cost of time survey at rates in the region of £120 an hour.

Reporters

9.10 The court had general power to make a remit to a reporter (a) to provide an opinion on a technical matter, (b) to investigate the circumstances and to report on them to the court, and (c) to preserve evidence 101. The circumstances in which the power to make a judicial remit might be used were very various indeed, as was the nature of the reports required and the expertise of the reporter.

9.11 Rule 33.21 of the Ordinary Cause Rules concerned the appointment of a local authority or reporter to investigate and report to the court on the circumstances of a child and on proposed arrangements for the care and upbringing of the child. Although this function was formerly carried out by local authority Social Work Departments, often at no cost, it now appeared that solicitors in private practice were most commonly appointed by the court to perform this role. Responsibility for payment of the reporter's fees and outlays fell in the first instance upon the party who sought the appointment or, where the court made the appointment of its own motion, the pursuer or minuter.

9.12 The wording of Rule 33.21(2)(b) therefore raised similar issues to those discussed above in relation to curators ad litem. The Scottish Legal Aid Board pointed out that where the reporter was a solicitor, payment was claimed at the same rates as those charged by curators and only in circumstances where a party seeks the appointment of a reporter does the Scottish Legal Aid Board have control over the costs.

Reporting Officers

9.13 Statute provided for the appointment of a reporting officer in proceedings for adoption, freeing for adoption and in applications for a parental responsibilities order. The function of the reporting officer in adoption proceedings was to witness agreements to adoption and to perform such other duties as might be prescribed 102. In applications for a parental responsibilities order, the function of the reporting officer was to witness agreements to such orders and to perform such other duties as might be prescribed 103.

Curators and Safeguarders in Proceedings under Part II of the Children (Scotland) Act 1995

9.14 The Scottish Legal Aid Board had raised a number of operational issues relating to the appointment of curators and safeguarders in proceedings before the sheriff arising out of earlier Children's Hearing proceedings. Those proceedings included appeals under section 51 and referrals under section 68 of the Children (Scotland) Act 1995. The statutory structure envisaged by the 1995 Act had been that a safeguarder might be appointed by the sheriff under section 41, whose costs would be borne by the local authority. However, it appeared that in some courts a practice had also developed whereby a curator ad litem, appointed under common law, was being appointed rather than a safeguarder,. In the interests of transparency, there should be clarity about the circumstances in which a curator rather than a safeguarder is appointed and who should bear the costs incurred where a curator has been appointed. Curators were paid at (higher) legal aid rates for this work than the rates recommended by the Convention of Scottish Local Authorities for safeguarders. It had also come to the attention of the Scottish Legal Aid Board that some sheriffs were appointing individuals as both curator and safeguarder. Those safeguarders and curators were generally practising solicitors who made applications on behalf of a child to the sheriff for legal aid under section 29 of the Legal Aid (Scotland) Act 1986.

9.15 Chapter 3 of the Child Care and Maintenance Rules 1997 dealt with procedure in cases under Part II of the Children (Scotland) Act 1995. Rules of Court could be made under section 32 of the Sheriff Court (Scotland) Act 1971, as read in conjunction with section 91 of the 1995 Act. Whilst provision was made regarding the appointment, powers and duties of safeguarders in rule 3.6 to 3.10, no rules had been made regarding the appointment of curator to either children or adults in such proceedings. Moreover, the wording of rule 3.19 which stated that "no expenses shall be awarded in any proceedings in which this chapter applies" raised a substantial question as to whether provision could be made specifying which party should bear the costs of a curator ad litem. Unless statutory provision could be made restricting the ability of the court to appoint anyone other than a safeguarder, and the current practice continued, it was thought to be desirable for this procedure to be regulated by rules of court.

Appointment and qualifications of curators and reporters

9.16 The Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 required each local authority area to have a panel of individuals from whom curators ad litem and reporting officers might be appointed for the purposes of section 87(4) of the Children (Scotland) Act 1995 (where a parental responsibilities order was sought) or section 58 of the Adoption (Scotland) Act 1978. The Court was not obliged to appoint a member of the panel.

9.17 A local authority had the power to determine the standard of qualifications or experience that should be attained by persons who might be appointed, in consultation with the sheriff principal. Before a local authority made any appointment they could invite nominations from the sheriff principal, other local authorities and other individuals the local authority might consider appropriate. A person could be a member of a panel for three years and might be re-appointed.

9.18 In most courts, individuals previously wrote to the sheriff principal to request entry to the list. In adoption cases and children's referrals, the practice was now more formal in Glasgow Sheriff Court and one or two other courts. In that system, an individual had to apply to the local authority to become a curator or reporter. An application form had to be completed which included questions for those working with children under the Disclosure (Scotland) Act. Once the disclosure element had been checked, the application was then submitted to the sheriff principal for approval. However, it was understood that the remaining sheriff courts still operated a system of requests to the sheriff principal.

9.19 In all other types of family cases, individuals could apply to the sheriff principal to be included on an informal list. The use of that list was under review in Glasgow Sheriff Court, as provision was not made for the Disclosure (Scotland) Act.

9.20 The Law Society of Scotland believed the most important aspects of such appointments to be that the Court making the appointment had confidence in the person being appointed to provide an objective report if appointed as a reporter and to act in the best interests of the party if appointed a curator. Such decisions were subjective and could not be based entirely on objective standards.

9.21 The Office of Fair Trading considered that the public interest was unlikely to be properly served unless the appointments process met certain criteria. In particular, it would be important to ensure that the process was transparent, proportionate, non-discriminatory and based on objective standards.

Conclusion

9.22 The Group concluded that the lack of common process for the appointments of curators and reporters across sheriffdoms and the variation in charges for the reports which were produced could raise matters of public and consumer interest and that more detailed research was necessary. It was not clear whether the system could be said to operate fairly for appointees or prospective appointees or in the public interest if the most qualified individuals were not appointed or able to apply.

9.23 The Scottish Executive was already looking at the payment of curators, etc for their reports as an access to justice and legal aid issue; and the appointments issue in the context of the recommendation by the Summary Justice Review Committee chaired by Sheriff Principal McInnes in relation to the education of Sheriffs and by way of possible changes to rules of court.