THE FACULTY of Advocates is on the cusp of relaunching an alternative dispute resolution service that is expected to cut down both the cost and the length of time it takes to bring legal action.
The arbitration service, which will initially focus on personal injury matters, is set to launch with two pilot cases in May, with a number of Faculty members currently working towards an arbitration qualification at the University of Aberdeen.
The project is being led by Faculty vice-dean Angela Grahame QC, who said that the Faculty’s dispute resolution service, which initially launched three years ago, “is interested in all sorts of arbitration”.
“It’s going to be bigger,” she said. “We see personal injury arbitration as a hub and there will be spokes coming off that hub.
“Some will be commercial arbitration, family arbitration, construction – all sorts of things. We’re even talking about equestrian arbitration.”
Noting that “90 per cent of the world’s disputes are resolved by arbitration”, Ms Grahame said the main benefits of arbitrating over litigating are that it is generally cheaper and can significantly cut down the time it takes to resolve a dispute.
“Computer software will give both parties 24-hour access to documents and they will be able to email the arbitrator to ask them to decide on the issues in dispute,” she said.
“People all over Scotland will be able to do this online and they will never have to wait in court for a judge or have to wait in a queue to have cases heard before theirs.”
While being able to offer arbitration as well as litigation services would be a feather in the cap of the Faculty, the move has met with a mixed response from solicitors’ firms, some of which have built their business model around litigating legal cases in the courts.
Wright, Johnston & Mackenzie chief executive Liam Entwistle, who specialises in dispute resolution including arbitration, called the move “encouraging”, adding that “more use of arbitration to sort out disputes can only be good for the consumer”.
“It’s good to see the Faculty endorse, in such an emphatic way, ways of resolving disputes which don’t rely on litigation in a court,” he said. “It must also be seen as a real recognition of our strong, but developing, arbitration offering in Scotland.”
For Andrew Constable, a personal injury partner in Clyde & Co’s Edinburgh office, arbitration is “likely to be an option worth considering”, although he warned that from a broader perspective arbitral decisions will have no influence on how the law develops. As Scots law is a hybrid of both common law and civil law, cases that have been litigated in court create judicial precedent that all lower courts are bound by.
Fraser Oliver, chief executive of personal injury specialist Digby Brown, which funds cases relating to issues such as clinical negligence or fatal accidents and recoups the money when clients win compensation in court, agreed, noting that finality of decisions, jurisprudence and funding are all areas of concern.
“While arbitration may have a role to play in a small number of personal injury cases, we see access to the courts as the most important route to justice for our clients,” he said.
“In a recent review of litigation funding the concept of compulsory arbitration [was rejected]. We would not wish to see a situation where the well-resourced insurance industry might seek to introduce compulsory arbitration by the back door by arguing that court costs should not be recoverable unless arbitration has been attempted.
“The privatisation of the law in this way would not be in the interests of the vast majority of accident victims. Our clients require the courts to administer the rule of law to provide access to justice.”
Ms Grahame acknowledged that some solicitors may “have concerns” over the launch of the service at the Faculty, but she added that having access to an alternative means of dispute resolution is “clearly in clients’ best interests”.
“One of the concerns is that firms have business models that are set up for litigation so how can they secure their business, but that assumes that you won’t be able to make money from arbitration,” she added.
“Insurers are keen on this and lots of pursuer firms have expressed an interest. The Faculty is really keen on doing this - we’re definitely doing it.”
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