Scottish Government

SUPPORTING COURT USERS:
The In-Court Advice and Mediation Projects in Edinburgh Sheriff Court

RESEARCH PHASE 2

3.5 Referrals and procedural stage

Implications of procedural stage of referrals

3.5.1 In-court Advice Project records were examined for the procedural stage at which clients were referred to the Project. The procedural stage at which clients are referred has implications both for the services which the In-court Adviser may offer, as well as for the impact of those services on clients and on the sheriff court. So, for example, pursuers in small claims and summary cause cases who are referred to the In-court Advice Project prior to raising an action may be offered advice as to the advisability of litigation, alternatives to litigation and what strategies to adopt at court hearings.-This is advice that is usually too late for small claims and summary cause litigants who make initial contact with the In-court Advice Project at the time of a court hearing. This has implications for the efficient use of court time. For example, advice given at early procedural stages allows the court to focus on the issues in dispute and may do away with the necessity of going to court entirely. Similarly, defenders in housing repossession cases who make contact with the In-court Advice Project prior to a court hearing, may be advised on what information to bring before the sheriff, how to avoid a court hearing, or they may be referred to another agency for assistance with debt or other problems prior to a court hearing. This has implications for how defenders present themselves in the heritage court and how matters are dealt with by the pursuer and the court.

Analysis of referrals by procedural stage of consultation

3.5.2 Clients consulted with the In-court Adviser at various procedural stages. More than 30 procedural stages were identified and were categorised according to their relationship to court callings. In Phase 2, 50% of all consultations were conducted prior to cases calling court compared with 46% of all consultations in Phase 1. However, since the proportion of consultations conducted prior to cases calling in court had steadily increased over the first nine months of the Project, from 13% in April 1997 (Month 1) to 47% in August (Month 5) and 52% in December 1997 (Month 9), consultations conducted during Phase 2 of the research were no more likely to be conducted prior to cases calling in court than during the latter months of Phase 1, that is, once the Project had established itself in Edinburgh Sheriff Court.

3.5.3 The number of consultations conducted with the In-court Adviser while client cases were being called in court almost doubled between the periods covered by the two phases of the research, (from 340 to 630). At first glance, then, it would appear as if the proportion of consultations conducted when cases called in court actually rose between Phase 1 and 2, (from around 25-30% to 38% of all consultations). However, once the 'double accounting' of return consultations in Phase 2 is taken into consideration (see 3.2.1-3.2.5), any differences between the two research phases disappear.

Analysis of referrals by procedural stage of initial and return consultations

3.5.4 More significant, both for the impact of the In-court Advice Project on court-based resources and on case-related effectiveness, is the procedural stage at which clients first consulted the In-court Adviser. Altogether, 968 out of the 1648 consultations conducted with 1017 clients over the ninth month period covered by Phase 2 of the research were initial consultations, compared with 680 (41%) 'return' consultations in this period.

3.5.5 As already discussed (3.2.1-3.2.5), there was a considerable increase in return consultations between the two phases of the research, with initial consultations rising by 42% over the period (from 683 to 968), but return consultations rising by over 300%, from 210 to 680.

Table 3.17 Procedural stage of initial and return consultations

Initial consultation

3.5.6 In Phase 1, that is, during the first nine months of the Project, 311 (46%) initial consultations were conducted some time prior to the case calling in court. In Phase 2 of the Project, however, this increased to 503 or 54% of all initial consultations. The likelihood of clients first consulting the In-court Adviser at an earlier stage of their case thus increased as the Project established itself in Edinburgh Sheriff Court. The number of initial consultations handled by the In-court Adviser prior to the case calling in court increased between Phase 1 and 2 by 61%, from 311 to 503.

3.5.7 The number of clients who first consulted with the In-court Adviser on the day their case called in court, however, increased between Phase 1 and 2 by only 24%, from 272 to 336. Indeed, the proportion of clients who first consulted the In-court Advice Project on the day their case called in court actually declined from 39% of all initial consultations in Phase 1 to 35% in Phase 2 (of cold comfort to the In-court Adviser).

3.5.8 Therefore, the substantial (42%) increase in initial consultations between the two periods covered by Phases 1 and 2 of the research was mainly, though not totally, amongst clients consulting with the In-court Adviser some time prior to their case calling in court.

Return consultations

3.5.9 The data were inspected to identify the procedural stages at which the large increase of return consultations were conducted. Though there were strong increases in the number of return consultations between the two research phases at almost every procedural stage, return consultations conducted before cases called in court rose from 78 (38% of all return consultations) to 287 (43% of all return consultations), an increase of almost 400%.

3.5.10 Return consultations conducted when cases called in court rose from 67 (32% of all return cases) to 224, a rise of 300%. Of these return consultations, however, 156 were conducted with clients who had already seen the In-court Adviser on the day their case was calling in court (prior to calling) and who were following up their court appearance by returning to the In-court Adviser. This 'double accounting' was not undertaken in the period covered by Phase 1 of the research: where a client consulted both before and after their case called in court in Phase 1, these two consultations were recorded by the In-court Adviser only once (see 3.2.1-3.2.5). Had consultations been recorded in Phase 2 as in Phase 1, then the number of return consultations taking place on the day cases called in court would have risen from 67 to only 68.

3.5.11 The enormous (300%) increase in return consultations between the two periods covered by Phases 1 and 2 of the research, therefore, was mainly restricted to clients consulting with the In-court Adviser some time prior to their case calling in court.

Analysis of referrals by procedural stage of initial consultation and procedural remit of case

3.5.12 There were some differences in the procedural stage at which clients first consulted the In-court Adviser, depending on the procedural remit of the case.

Table 3.18 The impact of case procedure on procedural stage of initial consultation

3.5.13 Thus, during the period covered by Phase 2 of the research, approximately half of all clients first consulted with the In-court Adviser prior to either raising a claim or prior to the Preliminary Hearing/First Calling. More than two thirds of all clients with cases calling under The Debtors Scotland Act, however, first consulted with the In-court Adviser prior to the 'time to pay' hearing. When Phase 1 and Phase 2 are compared, the proportion of initial consultations conducted prior to the case calling in court shows a rise of approximately 25% amongst small claims and summary cause clients and a very small rise amongst heritage clients.

3.5.14 During the period covered by Phase 2 of the research, only one in five (21%) small claims clients first consulted with the In-court Adviser at the Preliminary Hearing, compared with two in five (40%) heritage clients who first consulted with the In-court Adviser at the First Calling. Compared with Phase 1, the proportion of small claims and summary cause clients first consulting with the in-court Adviser at Preliminary Hearings and First Callings fell by over 33%, falling from 31% to 21% in small claims and 43% to 28% in summary cause. The proportion of heritage clients first consulting at First Calling remained steady between the two periods of research, (just falling from 41% to 40%). The actual number of heritage clients consulting with the In-court Adviser while the heritage court was in progress rose from 158 in the period covered by Phase 1 to 234 in Phase 2.

Analysis of referrals by procedural stage of initial consultation and procedural status

3.5.15 The procedural stage at which clients first consulted the In-court Advice Project also depended on their procedural status. Of the 1017 clients during Phase 2, 16% (162) were pursuers and 83% (841) were defenders, compared with 22% pursuers and 77% defenders in the first nine months of the Project.

Table 3.19 The impact of procedural status on procedural stage of initial consultation

3.5.16 Of the 162 pursuers who consulted the In-court Adviser in the period covered by Phase 2 of the research, 66% first approached the Project prior to raising a claim or prior to the Preliminary Hearing/First Calling, compared with 41% of defenders. Of the 841 defenders who approached the Project over the same period, 34% waited until the case first called in court, compared with 13% pursuers.

Analysis of referrals by procedural status and procedural remit of case

3.5.16 When procedure and status are considered together, the procedure under which pursuers make their claim appears to have little impact on the procedural stage at which they first consult with the In-court Adviser. Amongst defenders, however, procedure is significant. Heritable defenders and defenders with matters relating to The Debtors (Scotland) Act 1987 were far more likely to seek a consultation with the Project prior to their case calling in court (49% and 69% respectively) than small claims and summary cause defenders (30% and 32% respectively). This, of course, may largely be accounted for by the main mechanism by which clients involved in heritage actions and matters relating to The Debtors (Scotland) Act 1987 are referred to the Project, namely, via the insertion of information about the In-court Advice Project into their summonses.

3.6 Charting the Business of the In-court Advice Project: Work load and work distribution

Number of consultations

3.6.1 Business was monitored over the nine month period beginning 1 December 1998, by identifying the number of consultations conducted. Changes in the volume of consultations were identified, and then compared with the first 11 months of the In-court Advice Project.

Table 3.20 Volume of business conducted

3.6.2 When the Project was first established, the number of monthly consultations rose steadily from 52 in April to 134 in October, thereupon falling to 119 and 105 in November and in the shorter working month of December, respectively. November and December 1998 were unusual months, with fewer court sessions and fewer heritage actions raised. After the period covered by Phase 1 of the research, the trend in monthly consultations resumed its upward climb to 157 in January 1998 and 141 in February 1998.

3.6.3 During the period covered by Phase 2 of the research, the number of consultations conducted each month with the In-court Adviser never dipped below the level established in February 1998 and was often 50% higher. Like Phase 1, December saw business at its lowest, with 142 consultations. Thereafter, the number of consultations fluctuated between 166 and 215 consultations per month.

Initial and return consultations during Phase 2

3.6.4 Business was examined for fluctuations in initial and return consultations over Phase 2.

Table 3.21

3.6.5 The quietest months, December and April, saw the lowest number of initial consultations. The highest months, January, March, May and August, saw the highest numbers of monthly initial consultations and sometimes (January and August) the lowest number of return consultations. Initial consultations were mainly responsible for monthly fluctuations in business over Phase 2.

Consultations and procedural remit of cases during Phase 2

3.6.6 Over the nine months of Phase 2, monthly consultations relating to small claims procedure fluctuated between 33 and 61, with no apparent trend revealing itself. There were even greater monthly fluctuations in consultations relating to summary cause procedure, from only five consultations in December 1998, rising to 34 in March 1999, falling to eight in June 1999 and rising to 14 in August 1998. Monthly consultations relating to summary cause (heritage) procedure fluctuated between 60 and 120 and, because of their greater number, made a substantial impact on work load and work distribution within the Project. Consultations relating to cases under the remit of The Debtors (Scotland) Act 1987, hovered between 14 and 20 consultations per month.

Types of consultation: Comparing Phase 1 and 2

3.6.7 How consultations were conducted and the form which they took were monitored over both research periods.

Table 3.22 How consultations were conducted

3.6.8 The number of consultations in person increased by over 50% between Phase 1 and 2, while the number of consultations by telephone increased by over 100%. Nevertheless, some qualifications should be made. Over the two periods, the proportion of consultations in person appears to decrease (from 63% to 54%) while the proportion of consultations by telephone appears to increase (from 36% to 42%). This masks changes in the patterns of consultation as the In-court Advice Project established itself during Phase 1 of the research. By Months 7, 8 and 9 of Phase 1, the proportion of consultations conducted over the telephone had actually reached 45%, 54% and 51% of all consultations, respectively, and the proportion of consultations in person had correspondingly decreased. It might therefore appear as if the proportion of telephone consultations actually decreased between the latter months of Phase 1 and Phase 2. When new monitoring practices implemented after Phase 1 are taken into account, however, (see 3.2.1-3.2.5) there is little difference between Phase 2 and the last three months of Phase 1 in the distribution of consultations in person, by telephone or by letter. This is because the 'double accounting' recording of return consultations only made an impact on consultations in person. 23 Thus, the major change between the two phases remains the rising number of consultations of every kind, rather than their distribution.

Time of contact

3.6.9 The times at which clients consulted with the In-court Adviser was related to how they consulted. Clients who consulted the In-court Adviser in person were more likely to consult with the Project at a time when court was in session and when the In-court Adviser was extremely busy. The capacity of the Project to meet the needs of an increasing number of clients largely depended on how many consultations could be conducted when the court was not in session. Hence, whether clients consulted with the In-court Adviser when court was in session or when court was not in session was closely monitored in Phase 2.

Time of contact: Analysis by procedural status

3.6.10 More than half of all consultations in Phase 2 (57% or 936) were conducted outwith court sessions compared with 43% (705) which took place when court was in session. Only 62 consultations with pursuers took place when court was in session (20% of all consultations with pursuers), however, compared with 641 consultations with defenders (49% of all consultations with defenders). Thus, though 41% of all consultations with pursuers were conducted in person, less than half (only 20% of all consultations with pursuers) took place when court was in session. While 57% of consultations with defenders were conducted in person, most of these consultations (49% of all consultations with defenders) took place when court was in session. This is both because of the different opportunity structure available to pursuers and defenders for referral to the Project as well as the more pro-active stance of pursuers in accessing the In-court Advice Project at a time which may be more beneficial for them.

Time of contact: Analysis by source of referral

3.6.11 Large differences also appear when consultations, and particularly initial consultations, are inspected for source of referral. Though 44% of all initial consultations took place when court was in session, initial consultations were far more likely to take place when court was in session amongst clients referred by court staff (90%), by the Clerk of Court (89%), by sheriffs (94%), by staff associated with the In-court Advice Project (96%) and by themselves (66%). Altogether, these sources of referral were responsible for referring 340 out of the 437 clients who first consulted with the In-court Advice Project while court was sitting. Though 56% of all initial consultations took place outwith court time, initial consultations were far more likely to take place outwith court time amongst clients referred by the Office of the Sheriff Clerk (88%), by inserts in summons (90%) and by CABx (90%). Altogether, these sources of referral were responsible for referring 448 out of 554 clients who first consulted with the In-court Advice Project outwith court time.

3.7 summary of findings

Consultations and clients (3.2.1-3.2.20)

3.7.1 In the nine month period covered by Phase 2 of the research, 1648 consultations were undertaken with 1017 clients. When adjusted for differences in record keeping and compared with the first nine months of the Project, the number of clients and the volume of business (as measured by number of consultations) handled by the In-court Advice Project was found to have increased by 50% and 66% respectively.

3.7.2 There was an increase in the number of consultations and clients for all procedures, though the rise in consultations was greater than the rise in clients. This is partly accounted for by differences in record keeping between the two periods. The number or consultations relating to summary cause (heritage) procedure rose from 452 to 857 (a rise of 90%) and the number or clients rose from 382 to 615 (a rise of 61%). The number or consultations relating to summary cause procedure rose from 70 to 147 (a rise of more than 100%) and the number of clients rose from 46 to 66 (a rise of 43%). The number of consultations relating to The Debtors (Scotland) Act 1987 rose from four to 129 (a rise of more than 3,000%) and the number of clients from 3 to 63 ( a rise of 2,100%). The number of consultations relating to small claims procedure showed the slowest rate of growth, rising from 326 to 436 (a rise of 33%), while the number of clients hardly changed at all (from 217 to 225). As a result, the proportion of consultations with defenders rose from 73% in Phase 1 to 80% in Phase 2. Of 1648 consultations conducted in the nine months covered by Phase 2 of the research, 1310 were with respect to claims which had not been set in motions by those who sought advice from the Project.

3.7.3 Almost two-thirds (64%) of clients consulted with the In-court Adviser only once, ranging from 36% of clients who sought advice on matters relating to The Debtors (Scotland) Act, to 49% of clients seeking advice on small claims procedure, and to 73% of clients seeking advice on matters relating to summary cause (heritage) procedure. Defenders were more likely to consult only once compared with pursuers. The proportion of clients seeking advice more than once rose from 18% to 26% between the two period, though the increase may partly be attributed to differences in record keeping.

Clients and cases (3.3.1-3.3.17)

3.7.4 Over 60% of clients were local authority tenants compared with 7% of house owners and 3% private tenants. While information was not collected on the housing tenure of 29% of clients (mainly in cases unrelated to housing), some of them - though not as many - are likely to have been local authority tenants. The majority of clients sought advice on matters relating to housing arrears (60%) and other debts (30%), while the proportion of clients who sought advice on matters outwith the remit of the Project declined over the two periods. 58% of all clients were involved in cases brought by local authorities against tenants (compared with 52% of all clients in Phase 1), 2% in cases brought by private landlords against tenants, and 2% brought by housing associations against tenants. 7% of all clients were involved in cases brought by finance companies against debtors and 7% in businesses against consumers. There was a very noticeable increase in the number of clients involved in cases brought by local authorities against tenants (from 356 to 589) as well as a marked increase in clients seeking advice on claims made by finance companies against debtors. There was a noticeable decrease in the number of clients involved in cases brought by consumers against businesses (from 62 to 33).

3.7.5 The number and proportion of clients facing local authorities and other legally represented opponents was also higher in the period covered by the second phase of the research. The number of clients facing local authorities increased from 376 (56% of all clients) to 623 (62% of all clients) while the proportion of clients facing individuals declined from 16% to 11% of all clients. The number of clients facing legally represented opponents increased from 529 (79% of all clients) to 834 (83% of all clients).

Referrals and procedures (3.4.1-3.4.13)

3.7.6 The number of clients referred to the In-court Advice Project by inserts into the summonses doubled from 180 (representing 27% of all clients) in Phase 1 to 354 (representing 35% of all clients) in Phase 2. As the Project established itself in the court, there was a small numerical and proportional increase of referrals from sheriffs. Unlike Phase 1, when the In-court Adviser was mainly working alone, Project staff were now meeting court users at the doors of the court and were responsible for referring to the Project many of the clients whom the Clerk of Court would previously have referred. This displayed itself in a marked decrease in the number of clients referred by the Clerk of Court and a concomitant increase in the number or clients referred by Project staff, and amongst clients seeking advice on all procedures.

3.7.7 Like Phase 1, the largest proportion of small claims clients were referred from the Sheriff Clerk's Office (39% of small claims clients in Phase 2 compared with 31% in Phase 1) and the largest proportion of heritage clients were referred by inserts in summonses (50% of heritage clients in Phase 2 compared with 44% in Phase 1). While the Clerk of Court was the chief source of referral of summary cause clients in Phase 1 (26% of summary cause referrals), the Sheriff Clerk's Office and Project staff referred 30% and 20% of summary cause clients, respectively, in Phase 2. The chief source of referral of clients seeking advice on matters relating to The Debtors (Scotland) Act 1987 was information about the Project which was inserted into the summonses of ordinary cause cases by the Ordinary Cause section of the Sheriff Clerk's Office (67% of all referrals). This commenced just prior to the period covered by Phase 2 of the research and was clearly responsible for the dramatic rise in the number of these cases from Phase 1 (3 cases) to Phase 2 (63 cases).

3.7.8 The identification of procedural status was responsible for revealing the presence of an opportunity structure for referral to the In-court Advice Project. Amongst those clients who were pursuers, the Sheriff Clerk's Office was responsible for referring 40% in Phase 1 and 50% in Phase 2. Amongst clients who were defenders, inserts in summonses were responsible for referring 35% in Phase 1 and 44% in Phase 2. There was great variation between procedures, however, with only 5% and 3% of defenders amongst small claims and summary cause clients referred by inserts compared with 51% of heritage clients and 70% of clients with matters relating to The Debtors (Scotland) Act 1987.

Referrals and procedural stage (3.5.1-3.5.16)

3.7.9 The number of all consultations conducted prior to cases calling in court doubled (from 409 to 814) between the periods covered by the two phases of the research. It also increased proportionally from 46% to 50% of all consultations.

3.7.10 Amongst initial consultations, 503 (54%) consultations were conducted prior to cases calling in court, compared with 311(46%) in Phase 1. Amongst consultations relating to small claims and summary cause cases, there was a substantial increase in the proportion conducted before cases called in court (from 39% in Phase 1 to 50% in Phase 2 for small claims, and from 39% in Phase 1 to 48% in Phase 2 for summary cause). The number of consultations conducted on the day when cases were called in court rose from only 272 to 336 and fell proportionately from 39% to 35%. Amongst consultations relating to small claims and summary cause cases, there was a substantial decrease in the proportion of consultations conducted on the day cases called in court (from 31% in Phase 1 to 21% in Phase 2 amongst small claims cases, and from 43% in Phase 1 to 28% in Phase 2 amongst summary cause cases). Between Phase 1 and 2, the proportion of initial consultations conducted prior to cases calling in court rose from 58% to 66% amongst pursuers and from 38% to 41% amongst defenders. There were marked differences, however, between defenders. Amongst heritable defenders and defenders with matters relating to The Debtors(Scotland) Act 1987, initial consultations were sought prior to cases calling in court by 49% and 69% respectively, compared with small claims (30%) and summary cause (32%) defenders. The proportion of pursuers who first consulted on the day of a Preliminary Hearing or First Calling showed a marked decrease (from 22% in Phase 1 to 13% in Phase 2) compared with defenders (40% in Phase 1 to 34% in Phase 2).

3.7.11 Amongst return consultations, findings must be treated with some caution because of differences between Phase 1 and 2 in the recording procedures employed. When these are taken into consideration, the apparent increase in return consultations from 210 in Phase 1 to 680 in Phase 2 was largely though not entirely restricted to clients consulting with the In-court Adviser some time prior to their cases calling in court.

Charting the business: workload and work distribution (3.6.1-3.6.11)

3.7.12 The number of monthly consultations conducted during Phase 2 of the research was substantially higher than the monthly average of Phase 1, even accounting for differences in recording procedures. There were monthly fluctuations in the number of consultations relating to different procedures, and this was especially marked amongst consultations relating to summary cause (heritage) procedure.

3.7.13 While there were differences between the proportion of consultations conducted in person, by telephone and by letter between Phases 1 and 2, little difference remains when Phase 2 is compared with the latter months of Phase 1. The major change between the two phases is the rising number of consultations of every type, rather than their distribution.

3.7.14 More than half of all Phase 2 consultations (57%) were conducted at a time when court was not in session. Consultations with pursuers were far less likely to be conducted at a time when court was in session (20% of consultations with pursuers) than consultations with defenders (49% of consultations with defenders). Initial consultations were far more likely to take place when court was in session amongst clients referred by court staff, the Clerk of Court, sheriffs, or Project staff and clients themselves.