Scottish Government
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Better Access to Justice

New consultation for a more affordable and equitable civil justice system

Plans to introduce legislation to create a more accessible, affordable and equitable civil justice system for Scotland have been set out recently by Ministers.

A consultation on proposals for primary legislation on the expenses and funding of civil litigation has been published recently, with all those involved in or considering litigating in the civil courts encouraged to make their views known.

The proposed Bill would increase access to justice by:

  • making the costs of court action more predictable,
  • increasing the funding options for pursuers of civil actions; and
  • introducing a greater level of equality to the funding relationship between claimants and defenders in personal injury actions.

The main focus of the consultation is the elements of Sheriff Principal James Taylor’s Review of Expenses and Funding of Civil Litigation in Scotland (2013) identified in the Scottish Government’s response to the Review as requiring implementation by primary legislation.

Included is a package of proposals on speculative fee agreements, damages based agreements and qualified one-way costs shifting to provide safeguards and ensure that those embarking on civil litigation do so with full information on the likely financial impact of winning or losing the case.

The consultation also seeks views on some outstanding recommendations from Lord Gill’s Scottish Civil Courts Review (2009), including the potential to introduce a procedure for multi-party actions and provisions relating to the Auditor of Court and Sheriff Court auditors.

The consultation closes on April 24, 2015.

Minister for Community Safety and Legal Affairs Paul Wheelhouse said:

“The role which expenses play in the context of civil litigation cannot be underestimated. As Sheriff Principal Taylor set out in his review, the current unpredictability of the costs of civil litigation impacts on access to justice.

“The Scottish Government agrees that the current situation where the unpredictability of costs represents a barrier to justice is not acceptable. I am convinced that the proposals in our consultation will go a long way to making the Scottish civil litigation system much more accessible to the people of Scotland.

“Indeed, these improvements are the final part of a much wider series of reforms to our justice system which are designed to make it more effective and efficient for all parties involved, and ensure that disputes are resolved fairly and swiftly.

Background

Since receiving Sheriff James A Taylor’s Review of Expenses and Funding of Civil Litigation in Scotland, in September 2013, the Scottish Government has conducted a thorough analysis of the recommendations, held discussions with partners and agreed the way forward. In principle, the Scottish Government accepted all of the recommendations, but recognised that they should be taken forward incrementally in line with other justice reforms, not least the Courts Reform (Scotland) Act 2014 which lays the foundation on which to deliver the implementation.

The proposed Bill will help deliver key elements of Project 3 of the Scottish Government’s “Making Justice Work” Programme by ensuring there is sustainable, effective access to justice for both publicly funded and private clients. The views received in response to the consultation will help shape the legislation to be presented to Parliament.

Specifically, the consultation paper issued recently includes the Scottish Government’s plans to:

  • Introduce a capping mechanism for speculative fee agreements[1];
  • Allow damages based agreements[2] to be offered to clients by solicitors in Scotland and to be capped to the same extent as speculative fee agreements;
  • Introduce a system of qualified one-way costs shifting (QOCS)[3] in personal injury cases;
  • Introduce technical powers to enable the Scottish Civil Justice Council to implement some aspects of the Sheriff Principal Taylor’s review;
  • To make provision for legal aid in relation to “funder of last resort” (which will ensure that legal aid is targeted at those who need it most) and the availability of legal aid for legal persons in certain circumstances.

It also seeks views on:

  • Some outstanding recommendations from Lord Gill’s Scottish Civil Courts Review, including multi-party actions and provisions relating to the Auditor of Court and Sheriff Court auditors; and
  • Providing the Court of Session with the ability to develop a table of fees for counsel and solicitor advocates.

The consultation can be found at: http://www.scotland.gov.uk/Publications/2015/01/9932

[1] In a speculative fee agreement between lawyers and their clients, the client is only required to pay legal fees if the litigation is successful. Should they be unsuccessful, the client may still be liable for the expenses of their opponents.

[2] In a damages based agreement, a lawyer’s fee is calculated as a percentage of their client’s damages if the case is won, but no fee is payable if it is lost. Commonly referred to as a contingency fee agreement.

[3] QOCS is a one way expenses shifting regime that may become qualified in certain circumstances, such as where the pursuer has acted unreasonably, or where the resources available to the parties are grossly unequal.

 

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