On 26 February, the Scottish Government published the outcome of its consultation on Scottish Court Fees – that is, the fees which parties must pay to the courts to bring or defend a court action. You could be forgiven for assuming that this was a dry and uninteresting review of rather mundane matters. However that assumption would be wrong. The consultation considered the principles which underpin the funding of the civil courts in Scotland and the extent to which access to justice is impeded by the current fee structure. These are topics closely allied to those being considered by the Scottish Government in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill 2017. Indeed responses to the Fees consultation focused on some of the same issues which have been raised in relation to the Bill.
Should the Scottish Court System be funded by users or by the state?
Some of those who responded to the Consultation Paper suggested that the civil court system provides a public good with a reach wider than its immediate participants. They argued that the courts should provide a fully funded public service; supported by the taxpayer and free to the user. The Scottish Government rejected this argument, concluding that the private benefit to litigants was such that they should continue to fund the system. In reaching that conclusion the Government noted that it was necessary to limit "demands on the public purse" and there was some subsidy of civil claims by way of fee exemption and Civil Legal Aid.
Access to justice
In the consultation document the Scottish Government stated that "maintaining access to justice must be a paramount consideration".
Many respondents argued that the fees were an impediment and should be abolished altogether in civil courts. Those respondents relied upon Unison v Lord Chancellor 2017 UKSC51 to support their argument. In that case the Supreme Court concluded that the fees charged by the Employment Tribunal were an unlawful barrier to access to justice. This decision was referenced many times in the oral evidence given in relation to the Civil Litigation Bill. Those making the references relied upon the decision to support the view that civil court fees deter potential claimants from raising claims, or, alternatively, induce claimants to settle earlier or for less than they otherwise would have done. In relation to the Bill it was argued by some that claimants should never pay the fees, whether successful or not and that the fees should always be met by defenders and their insurers.
However, significantly, in Unison, the court found that fees were, in principle, a permissible method of funding and operating the system of courts and tribunals.
Relevance to other changes in litigation funding
The Scottish Government's conclusions could be considered relevant to the Civil Litigation Bill. It was argued during the Justice Committee's scrutiny of the Bill that court fees should only be paid at the conclusion of litigation by the unsuccessful party and therefore only by defenders or their funders. However, in this consultation, the Government recognised the reality that many, if not most, claimants have the benefit of a no-win no-fee arrangement and will not become liable for the fees in any event. It was the Government's view that the payment of Court fees on behalf of a litigant was not an unreasonable burden to place on "Trade Unions or Legal Firms".
The Scottish Government also recognised that the current structure does place some incentive on claimants to litigate responsibly and to consider the merits of proceeding to the next stage of an action. As the introduction of Qualified One Way Costs Shifting (QOCS) will remove the risk of an adverse costs finding, even where a claimant is unsuccessful; any such incentives - which may reduce the likelihood of spurious claims - are to be welcomed.
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