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in 1907. That changes have been needed has been well recognised by

sheriffs, court staff and solicitors for many years.

The new rules intend to resolve the fundamental problem which hinders

justice in all civil cases, namely delay. Solicitors practising in the

court, and the clients they represent, know only too well what delay can

mean. In a recent case, after yet more unjustifiable prevarication by

the defenders, I complained to the sheriff that nothing much had

happened for two years. His plaintive response was that the previous

case he had dealt with that morning had lasted five. To no avail, I

pointed out that that was exactly what I was trying to avoid.

All sheriff court solicitors have their horror stories of actions

going off the rails due to the behaviour of the other solicitor,

invariably acting for the defender. The classic characteristics of such

actions are the vaguest possible written defences being lodged, month

after month of delay during the period allocated for each party to

adjust their written case (any adjustments being intimated always at the

last moment thus forcing the other party to ask the court for a further

postponement to investigate the new allegations), and the sheriff

eventually getting fed up and insisting upon progress.

The defender's solicitor then asks for a preliminary hearing on the

legal issues. This is fixed for perhaps as long as four months later.

Out of sight, out of mind, until the night before when he realises his

defence is all wrong; the following day he asks, and gets, a further

opportunity to amend his case. This has been known to happen on three or

four occasions in the one action.

Eventually, a final hearing is fixed. Out of mind again, until a

couple of weeks before D-day, when the solicitor rushes around obtaining

witness statements and the like. Too late, he realises that he is not

prepared and asks the sheriff to postpone the date -- a more difficult

job this time, but still possible. Four or five months later he is back

in, but this time his client realises he might lose, the pursuer is

thoroughly disgusted with the whole process, and the parties settle at

the door of the court.

Delay can be said to be the fault of the sheriff for allowing it and

the defender for wanting to spin out a hopeless defence. It is, however,

ultimately the parties' solicitors who control the timescale. The new

rules will stop all that. The sheriff will tightly control the time

limits fixed and will take a much more active role in identifying the

proper issues between the parties. At least, that is the theory. The

fact is that present procedures would work perfectly well if the

solicitors pleading the cases got their acts together.

ON his retiral in 1989, Lord President Emslie, Scotland's top Judge,

lambasted the standard of pleading by solicitors in the lower courts. He

said he had ''never yet in all (his) experience seen a case conducted to

a standard acceptable in the Supreme Court by a solicitor''. The noise

of indignation was heard echoing around the headquarters of the Law

Society, some solicitors pointing out that there were frequent occasions

when the same criticism could be levelled at advocates in the Court of

Session.

We all, however, secretly knew that Lord Emslie was right. Every

solicitor worth his salt can recall cases where, for the benefit of a

client, the solicitor had quite properly spun out a doubtful defence as

he watched the other party's solicitor fail to identify the proper legal

issues or questions of fact.

The fear is that, no matter how radical the new rules are, there will

still be far too many bad actions raised or bad defences stated. Perhaps

the sheriff will identify these at an earlier stage, yet I can easily

envisage that in 10 years time the court will be under just as much

pressure as now to allow latitude to the parties and their agents.

Nothing, in my view, will truly be resolved until solicitors

themselves take heed of Lord Emslie's view. The sheriffs and the Sheriff

Court Rules Council, on which solicitors are represented, can do only so

much. Senior litigation partners should consider far more closely the

standards of practice of their junior partners and staff. Each solicitor

should spend much more time learning the law and mastering the art of

written pleading.

One of my first proofs in the early 70s involved representing a fellow

solicitor in a motor accident case. On the advice of a canny old

practitioner, I used toy cars to illustrate the evidence, carefully

ensuring that my client's car was represented by a Matchbox Mini, the

other by what is is now known as a Tonka truck. So convinced was I of

the effect this would have on the subconscious mind of the sheriff that

I felt it unnecessary to consider law. In contrast, my opponent, in

support of his plea, reeled off a series of major learned decisions of

the House of Lords, much to the silent derision of my client and myself.

The evidence was clearly in my favour, and I won the battle, but only by

the skin of my teeth. My opponent that day is now recognised as one of

the foremost Scottish lawyers in personal injury cases. I think he won

the war.